SCHOOL  OF  LAW 

UNIVERSITY  OF  CALIFORNIA 

Los  Angeles 

GIFT  OF 

Roscoe  Pound 


\^^m 


CASES 

ON 

FEDERAL  PROCEDURE 


TOGETHER  WITH 


JUDICIAL  CODE,  EQUITY  RULES, 
FORMS   AND   QUESTIONNAIRE 


BY 


CARL  C.  WHEATON,  A.B.,  LL.B.  (Harvard) 

Author  of  "Outline  of  Cases  on  Mining  Law,"  etc. 


CHICAGO 

CALLAGHAN  AND  COMPANY 

1921 


192-1 


Copj^right, 

1921, 

by 

CALLAGHAX  & 

COMPANY 

5t 


PREFACE 


This  book  has  been  compiled  primarily  for  use  in  the  class  room. 
Therefore  its  size  has  been  kept  within  such  a  limit  that  it  can  all 
be  covered  in  two  recitations  a  week  for  half  of  a  school  year.  As 
a  result,  only  the  more  important  sections  of  the  Judicial  Code  have 
been  covered  thoroughly,  and  cases  have  not  been  included  on 
points  which  are  obvious. 

The  notes  presented  in  connection  with  the  reprinted  cases  are 
not  intended  to  be  lists  of  cases  in  accord  with  them,  but  rather  to 
show  when  there  are  cases  contra  to  them,  and  to  give  illustrations 
of  variations  of  the  problems  dealt  with  in  them. 

Onh^  those  portions  of  the  cases  which  are  relevant  to  the  points 
Avhich  are  intended  to  be  illustrated  by  them  are  set  forth.  Names 
and  arguments  of  counsel  are  omitted,  as  are  long  lists  of  cited 
cases.     In  many  instances  the  facts  have  been  restated. 

The  Judicial  Code  has  been  included,  so  that  it  may  be  available 
for  ready  reference. 

The  Equity  Rules,  and  certain  forms  illustrating  them,  have  been 
reprinted  so  that,  if  time  permits,  some  work  may  be  done  along 
the  practical  lines  of  Federal  Procedure.  A  large  number  of  forms 
have  not  been  reprinted,  since  the  students  using  this  book  would 
not  have  the  time  to  study  them  accurately. 

I  gratefully  acknowledge  the  kindness  of  Dean  Roscoe  Pound 
and  Professor  Joseph  H.  Beale  of  the  Harvard  Law  School  in 
responding  to  my  requests  for  advice.  The  inclusion  of  certain 
portions  of  this  book,  as  well  as  the  form  given  to  some  of  the  in- 
dexes, is  due  to  that  correspondence. 

Carl  C.  Wheaton. 
Cincinnati,  Ohio,  August  1,  1920. 


792771 


TABLE  OF  CONTENTS 


CHAPTER  I 

INTRODUCTION 
SECTION  PAGE 

1 .  JMiscellaneous 1 


CHAPTER  II 

DISTRICT  COURTS 

1.  Organization    16 

2.  Jurisdiction    40 

a.  Suits  of  a  civil  nature  at  law  and  in  equity 40 

b.  When  United  States  is  a  party 48 

c.  Who  an  officer  of  the  United  States  is 54 

d.  Citizens  of  the  same  state  claiming  lands  from  other 

states    55 

e.  Amount  in  controversy 57 

f.  Suits  arising  under  the  constitution  or  laws  of  the 

United  States   78 

g.  State  a  party  to  the  action 89 

h.  Diversity  of  citizenship   93 

i.  Choses  in  action   130 

j.  Causes  in  admiralty   154 

k.  Seizures  and  prizes 164 

1.  What  revenue  laws  are 168 

m.  Cases  arising  under  patent  and  copyright  laws 171 

n.  Cases  arising  under  laws  regulating  commerce 177 

o.  Cases  arising  under  laws  providing  for  forfeitures 

and  penalties 179 

p.  Debentures  and  drawbacks    183 

q.  Injuries  incurred  in  enforcing  revenue  laws 184 

r.  Suits  to  redress  deprivation  of  rights  secured  by 

constitution  and  laws  of  the  United  States 187 

s.  When  defeated  or  deprived  of  electoral  office 191 

V 


vi  Table  of  Contents 

SECTION  ■  PAGE 

t.  Suits  affecting  ambassadors,  consuls,  etc 194 

u.  Actions  against  the  United  States 197 

3.  Removal  of  Causes  205 

a.  Waiver  of  right  to  remove 205 

b.  Effect  of  lack  of  jurisdiction  of  state  court  on 

right  to  remove 208 

c.  Supplementary  proceedings 211 

d.  Cases  arising  under  the  constitution  or  laws  of  the 

United  States   215 

e.  Who  defendants  are 216 

f.  Officer  of  the  United  States  a  party 219 

g.  Representative  parties  220 

h.  Right  of  removal  as  affected  by  tj'pe  of  action 220 

i.  Sham  parties   222 

j.  Parties  who  may  remove 228 

k.  Amount  in  controversy 229 

1.  Pleading  jurisdiction  230 

m.  Waiver  of  objection  to  removal 231 

n.  Separable  controvereies   235 

0.  Prejudice  or  local  influence 263 

p.  Time  within  which  removal  must  be  had 270 

fj.  Manner  of  removing   274 

r.  District  to  which  removal  must  be  had 283 

s.  Rights  secured  b}'  the  constitution  and  laws  of  the 

United  States 307 

t.  Appointed  under  or  acting  by  authority  of  a  rev- 
enue law  of  the  United  States  314 

u.  Writs  or  habeas  corpus  cum  causa  and  certiorari.  .  .  .  323 

V.  Pauper  petitioner   332 

w.  Effect  of  removal 333 

4    Miscellaneous  Provisions   337 

a.  Moaning  of  "high  seas"  337 

b.  Venue  of  cases  rehiting  to  offenses  committed  on 

111"  high  seas,  etc 340 

('.   Venue  of  cases  relating  to  tlie   infringement  of 

letters  patent    342 

d.  Venue  of  cases  of  a  civil  nature 343 

e.  Wh;if  actions  are  hx-al  and  what  transitory 362 

f.  Meaning  of  "division  " 367 

f?.  Venue  of  actions  to  remove  or  enforce  liens,  etc 367 

li.  Power  of  cases  where  court  lias  appointed  a  receiver.  .  372 

'i.  Apiiointincnts  liy  judges 372 


Table  op  Contents  vii 
CHAPTER  III 

CIRCUIT  COURTS  OF  APPEALS 
SECTION  PAGE 

1.  Jurisdiction    375 

a.  What  a  final  decision  is 375 

b.  Pleading  jurisdiction  377 

c.  Appeal  or  writ  of  error  taken  as  to  whole  ease  to 

Circuit  Court  of  Appeals 377 

d.  Meaning  of  ' '  unless  otherwise  provided  by  law  " 380 

e.  Cases  in  which  jurisdiction  of  lower  court  was 

based  wholly  on  diversity  of  citizenship  381 

f .  Interlocutory  orders  or  decrees 382 

g.  Proceedings  in  bankruptcy,  etc 396 


CHAPTER  IV 

SUPREME  COURT 

1.  Jurisdiction    400 

a.  Cases  relating  to  ambassadors,  etc 400 

b.  Writs  of  prohibition  and  certiorari 403 

c.  Trial  by  jury  406 

d.  Highest  court  of  a  state 407 

e.  Cases  involving  constitutional  questions 409 

f.  Certification  to  the  Supreme  Court 413 

g.  Meaning  of  "by  certiorari  or  otherwise " 418 

h.  Interlocutory  orders 418 

i.  Amount  in  controversy 420 

j.  Appeals  from  the  decisions  of  the  Court  of  Claims .  . .  422 

k.  Bankruptcy  proceedings,  etc 425 

CHAPTER  V 

PROVISIONS  COMMON  TO  MORE  THAN  ONE  COURT 

1'.  Definitions    429 

2.  Contempts 432 

CHAPTER  VI 

CONCURRENT  JURISDICTION 

1.  Rights  of  State  and  Federal  Courts  having  concurrent 

jurisdiction    434 


viii  .         '  Table  of  Contents 

APPENDIX 

SECTION  PAGE 

Judicial  Code,  (see  Index  p.  729)   445 

Cross  Reference  Tables  589 

Equity  Rules,  (see  Index  p.  753)   601 

Forms  625 

Questionnaire    671 

Table  of  Cases 701 

Index    717 


Cases  on  Federal  Procedure 


CHAPTER  I. 
INTRODUCTION. 

SECTION  I. 

Miscellaneous  Cases. 
MARTIN  V.  HUNTER'S  LESSEE. 

Supreme  Court  of  the  United  States.    1816. 

U  U.  S.  (1  Wheaton)  304,  4  L.  Ed.  97. 

Story,  J.,^  delivered  the  opinion  of  the  court. 

The  third  article  of  the  Constitution  is  that  which  must  prin- 
cipally attract  our  attention.  The  first  section  declares,  "the 
judicial  power  of  the  United  States  shall  be  vested  in  one  Supreme 
Court,  and  in  such  other  inferior  courts  as  the  Congress  may,  from 
time  to  time,  ordain  and  establish."  The  second  section  declares, 
that  "the  judicial  power  shall  extend  to  all  cases  in  law  or  equity, 
arising  under  this  Constitution,  the  laws  of  the  United  States,  and 
the  treaties  made,  or  which  shall  be  made,  under  their  authority ; 
to  all  cases  affecting  ambassadors,  other  public  ministers  and  con- 
suls ;  to  all  cases  of  admiralty  and  maritime  jurisdiction ;  to  contro- 
versies to  which  the  United  States  shall  be  a  party ;  to  controver- 
sies between  two  or  more  States;  between  a  State  and  citizens  of 
another  State ;  between  citizens  of  different  States ;  between  citi- 
zens of  the  same  State,  claiming  lands  under  the  grants  of  different 
States;  and  between  a  State  or  the  citizens  thereof,  and  foreign 
States,  citizens,  or  subjects."     It  then  proceeds  to  declare,  that 

1  Only  a  portion  of  the  opinion  is  reprinted. — Ed. 

1 


2  Cases  on  Federal  Procedure 

"in  all  cases  affecting  ambassadors,  other  public  ministers  and 
consuls,  and  those  in  which  a  State  shall  be  a  party,  the  Supreme 
Court  shall  have  original  jurisdiction.  In  all  the  other  cases  before 
mentioned  the  Supreme  Court  shall  have  appellate  jurisdiction, 
both  as  to  law  and  fact,  with  such  exceptions,  and  under  such  regu- 
lations, as  the  Congress  shall  make." 

Such  is  the  language  of  the  article  creating  and  defining  the 
judicial  power  of  the  United  States.  It  is  the  voice  of  the  whole 
American  people  solemnly  declared,  in  establishing  one  great  de- 
partment of  that  Government  which  was,  in  many  respects, 
national,  and  in  all,  supreme.  It  is  a  part  of  the  very  same  in- 
strument which  was  to  act  not  merely  upon  individuals,  but  upon 
States;  and  to  deprive  them  altogether  of  the  exercise  of  some 
powers  of  sovereignty,  and  to  restrain  and  regulate  them  in  the 
exercise  of  others. 

Let  this  article  be  carefully  weighed  and  considered.  The  lan- 
guage of  the  article  throughout  is  manifestly  designed  to  be  man- 
datory upon  the  Legislature.  Its  obligatory  force  is  so  impera- 
tive, that  Congress  could  not,  without  a  violation  of  its  dut}-,  have 
refused  to  carry  it  into  operation.  The  judicial  power  of  the 
United  States  shall  be  vested  (not  may  be  vested)  in  one  Supreme 
Court,  and  in  such  inferior  courts  as  Congress  may,  from  time  to 
time,  ordain  and  establish.  Could  Congress  have  lawfully  refused 
to  create  a  Supreme  Court,  or  to  vest  in  it  the  constitutional  juris- 
diction? "The  judges,  both  of  the  Supreme  and  inferior  courts, 
shall  hold  their  offices  during  good  behaviour,  and  shall,  at  stated 
times,  receive,  for  their  services,  a  compensation  which  shall  not 
be  diminished  during  their  continuance  in  office."  Could  Congress 
create  or  limit  any  other  tenure  of  the  judicial  office  ?  Could  they 
refuse  to  pay,  at  stated  times,  the  stipulated  salary,  or  diminish 
it  during  the  continuance  in  office?  But  one  answer  can  be  given 
to  these  questions ;  it  must  be  in  the  negative.  The  object  of  the 
Constitution  was  to  establish  three  great  departments  of  govern- 
ment ;  the  legislative,  the  executive,  and  the  judicial  departments. 
The  first  was  to  pass  laws,  the  second  to  approve  and  execute  them, 
and  the  third  to  expound  and  enforce  them.  Without  the  latter, 
it  would  be  impossible  to  carry  into  effect  some  of  the  express 
provisions  of  the  Constitution.  How,  otherwise,  could  crimes 
against  the  United  States  be  tried  ami  punished?  IIow  could 
causes  between  two  States  be  heard  and  determined?  The  judicial 
power  must,  therefore,  be  vested  in  some  court,  by  Congress; 
and  to  .suppose  that  it  was  not  an  obligation  binding  on  them,  but 


Introduction  3 

might,  at  their  pleasure,  be  omitted  or  declined,  is  to  suppose  that, 
under  the  sanction  of  the  Constitution,  they  might  defeat  the  Con- 
stitution, itself;  a  construction  which  would  lead  to  such  a  result 
cannot  be  sound. 

The  same  expression,  "shall  be  vested,"  occurs  in  other  parts 
of  the  Constitution,  in  defining  the  powers  of  the  other  co-ordinate 
branches  of  the  Government.  The  first  article  declares  that  "all 
legislative  powers  herein  granted  shall  be  vested  in  a  Congress  of 
the  United  States."  Will  it  be  contended  that  the  legislative  pow- 
er is  not  absolutely  vested?  That  the  words  merely  refer  to  some 
future  act,  and  mean  only  that  the  legislative  power  may  here- 
after be  vested?  The  second  article  declares  that  "the  executive 
power  shall  be  vested  in  a  president  of  the  United  States  of 
America."  Could  Congress  vest  it  in  any  other  person;  or,  is  it 
to  await  their  good  pleasure,  whether  it  is  to  vest  at  all?  It  is 
apparent  that  such  a  construction,  in  either  case,  would  be  utterly 
inadmissible.  Why,  then,  is  it  entitled  to  a  better  support  in 
reference  to  the  judicial  department. 

If,  then,  it  is  a  duty  of  Congress  to  vest  the  judicial  power  of 
the  United  States,  it  is  a  duty  to  vest  the  whole  judicial  power.^ 
The  language,  if  imperative  as  to  one  part,  is  imperative  as  to 
all.  If  it  were  otherwise,  this  anomaly  would  exist,  that  Congress 
might  successively  refuse  to  vest  the  jurisdiction  in  any  one  class 
of  cases  enumerated  in  the  Constitution,  and  thereby  defeat  the 
jurisdiction  as  to  all ;  for  the  Constitution  has  not  singled  out  any 
class  on  which  Congress  are  bound  to  act  in  preference  to  others. 

The  next  consideration  is  as  to  the  courts  in  which  the  judicial 
power  shall  be  vested.  It  is  manifest  that  a  Supreme  Court  must 
be  established;  but  whether  it  be  equally  obligatory  to  establish 
inferior  courts,  is  a  question  of  some  difficulty.  If  Congress  may 
lawfully  omit  to  establish  inferior  courts,  it  might  follow,  that  in 
some  of  the  enumerated  cases  the  judicial  power  could  nowhere 
exist.  The  Supreme  Court  can  have  original  jurisdiction  in  two 
classes  of  cases  only,  viz.  in  cases  affecting  ambassadors,  other 
public  ministers  and  consuls,  and  in  cases  in  which  a  State  is  a 
party.  Congress  cannot  vest  any  portion  of  the  judicial  power  of 
the  United  States,  except  in  courts  ordained  and  established  by 
itself;  and  if  in  any  of  the  cases  enumerated  in  the  Constitution, 
the  State  courts  did  not  then  possess  jurisdiction,  the  appellate 
jurisdiction  of  the  Supreme  Court  (admitting  that  it  could  act  on 

2  Compare  Long's  Federal  Courts  (3rd  Ed.),  Sec.  39,  pp.  54-55. — Ed. 


4  Cases  on  Federal  Procedure 

State  courts)  could  not  reach  those  cases,  and,  consequently,  the 
injunction  of  the  Constitution,  that  the  judicial  power  ''shall  be 
vested,"  would  be  disobeyed.  It  would  seem,  therefore,  to  follow, 
that  Congress  are  bound  to  create  some  inferior  courts,  in  which 
to  vest  all  that  jurisdiction  which,  under  the  Constitution,  is  ex- 
clusively vested  in  the  United  States,  and  of  which  the  Supreme 
Court  cannot  take  original  cognizance.  They  might  establish  one 
or  more  inferior  courts ;  they  might  parcel  out  the  jurisdiction 
among  such  courts,  from  time  to  time,  at  their  own  pleasure.  But 
the  whole  judicial  power  of  the  United  States  should  be,  at  all 
times,  vested  either  in  an  original  or  appellate  form,  in  some 
courts  created  under  its  authority. 

This  construction  w411  be  fortified  by  an  attentive  examination 
of  the  second  section  of  the  third  article.  The  words  are  "the 
judicial  power  shall  extend,"  etc.  Much  minute  and  elaborate 
criticism  has  been  employed  upon  these  words.  It  has  been  argued 
that  they  are  equivalent  to  the  words  "may  extend,"  and  that 
"extend"  means  to  widen  to  new  cases  not  before  within  the  scope 
of  the  power.  For  the  reasons  which  have  been  already  stated, 
we  are  of  opinion  that  the  words  are  used  in  an  imperative  sense. 
They  import  an  absolute  grant  of  judicial  power.  They  cannot 
have  a  relative  signification  applicable  to  powers  already  granted ; 
for  the  American  people  had  not  made  any  previous  grant.  The 
Constitution  was  for  a  new  government,  organized  with  new  sub- 
stantive powers,  and  not  a  mere  supplementary  character  to  a 
government  already  existing.  The  consideration  was  a  compact 
between  States;  and  its  structure  and  powers  were  wholly  unlike 
those  of  the  National  Government.  The  Constitution  Avas  an  act 
of  the  people  of  the  United  States  to  supersede  the  confederation, 
and  not  to  be  ingrafted  on  it,  as  a  stock  through  which  it  was  to 
receive  life  and  nourishment. 

If,  indeed,  the  relative  signification  could  be  fixed  upon  the 
term  "extend,"  it  could  not  (as  we  shall  hereafter  see)  subserve 
the  purposes  of  the  argument  in  support  of  which  it  has  been 
adduced.  This  imperative  sense  of  the  words  "shall  extend,"  is 
strengthened  by  the  context.  It  is  declared  that  "in  all  eases 
afTccting  ainbjissadors,  etc.,  that  the  Supreme  Court  shall  have 
original  jurisdiction."  Could  Congress  withhold  original  jurisdic- 
tion in  these  cases  from  the  Supreme  Court?  The  clause  pro- 
fpods — "in  all  th.'  oilier  cases  l)cfore  mentioned  the  Supreme  Court 
shall  liave  appellate  jnrisflicl ion.  both  as  to  law  and  fact,  with  such 
exceptions,    and    under    such    regulations,   as    the    Congress   shall 


Introduction  5 

make."  The  very  exception  here  shows  that  the  framers  of  the 
Constitution  used  the  words  in  an  imperative  sense.  What  neces- 
sity could  there  exist  for  this  exception  if  the  preceding  words  were 
not  used  in  that  sense?  Without  such  exception,  Congress  would, 
by  the  preceding  words,  have  possessed  a  complete  power  to  regu- 
late the  appellate  jurisdiction,  if  the  language  were  only  equivalent 
to  the  words  "may  have"  appellate  jurisdiction.  It  is  apparent, 
then,  that  the  exception  was  intended  as  a  limitation  upon  the  pre- 
ceding words,  to  enable  Congress  to  regulate  and  restrain  the  appel- 
late power,  as  the  public  interests  might,  from  time  to  time,  require. 

Other  clauses  in  the  Constitution  might  be  brought  in  aid  of 
this  construction ;  but  a  minute  examination  of  them  cannot  be 
necessary,  and  would  occupy  too  much  time.  It  will  be  found  that 
whenever  a  particular  object  is  to  be  effected,  the  language  of  the 
constitution  is  always  imperative,  and  cannot  be  disregarded  with- 
out violating  the  first  principles  of  public  duty.  On  the  other 
hand,  the  legislative  powers  are  given  in  language  which  implies 
discretion,  as  from  the  nature  of  legislative  power  such  a  discre- 
tion must  ever  be  exercised. 

It  being,  then,  established  that  the  language  of  this  clause  is 
imperative,  the  next  question  is  as  to  the  cases  to  which  it  shall 
apply.  The  answer  is  found  in  the  Constitution  itself.  The  judicial 
power  shall  extend  to  all  the  cases  enumerated  in  the  Constitution. 
As  the  mode  is  not  limited,  it  may  extend  to  all  such  cases,  in  any 
form,  in  which  judicial  power  may  be  exercised.  It  may,  there- 
fore, extend  to  them  in  the  shape  of  original  or  appellate  juris- 
diction, or  both;  for  there  is  nothing  in  the  nature  of  the  cases 
which  binds  to  the  exercise  of  the  one  in  preference  to  the  other. 

In  what  eases  (if  any)  is  this  judicial  power  exclusive,  or  ex- 
clusive at  the  election  of  Congress  ?  It  will  be  observed  that  there 
are  two  classes  of  cases  enumerated  in  the  Constitution,  between 
which  a  distinction  seems  to  be  drawn.  The  first  class  includes 
cases  arising  under  the  Constitution,  laws,  and  treaties  of  the 
United  States;  cases  affecting  ambassadors,  other  public  ministers 
and  consuls,  and  cases  of  admiralty  and  maritime  jurisdiction. 
In  this  class  the  expression  is,  and  that  the  judicial  power  shall 
extend  to  all  cases ;  but  in  the  subsequent  part  of  the  clause  which 
embraces  all  the  other  cases  of  national  cognizance,  and  forms 
the  second  class,  the  word  "aJl"  is  dropped  seemingly  ex  in- 
dustria.  Here  the  judicial  authority  is  to  extend  to  controversies 
(not  to  all  controversies)  to  which  the  United  States  shall  be  a 
party,  etc.     From  this  difference  of  phraseology,  perhaps,  a  dif- 


6  Cases  on  Federal  Procedure 

ferenee  of  constitutional  intention  may,  with  propriety,  be  in- 
ferred. It  is  hardly  to  be  presumed  that  the  variation  in  the 
language  could  have  been  accidental.  It  must  have  been  the 
result  of  some  determinate  reason;  and  it  is  not  very  difficult  to 
find  a  reason  sufficient  to  support  the  apparent  change  of  in- 
tention. In  respect  to  the  first  class,  it  may  well  have  been  the 
intention  of  the  framers  of  the  Constitution  imperatively  to  ex- 
tend the  judicial  power  either  in  an  original  or  appellate  form 
to  all  cases ;  and  in  the  latter  class  to  leave  it  to  Congress  to  qualify 
the  jurisdiction,  original  or  appellate,  in  such  manner  as  public 
policy  might  dictate. 

The  vital  importance  of  all  the  cases  enumerated  in  the  first 
class  to  the  national  sovereignty,  might  warrant  such  a  distinc- 
tion. In  the  first  place,  as  to  cases  arriving  under  the  Constitu- 
tion, laws,  and  treaties  of  the  United  States.  Here  the  State  courts 
could  not  ordinarily  possess  a  direct  jurisdiction.  The  jurisdic- 
tion over  such  cases  could  not  exist  in  the  State  courts  previous 
to  the  adoption  of  the  Constitution,  and  it  could  not  afterwards 
be  directly  conferred  on  them;  for  the  Constitution  expressly  re- 
quires the  judicial  power  to  be  vested  in  courts  ordained  and 
established  by  the  United  States.  This  class  of  cases  would  embrace 
civil  as  well  as  criminal  jurisdiction,  and  affect  not  only  our  in- 
ternal policy,  but  our  foreign  relations.  It  would,  therefore,  be 
perilous  to  restrain  it  in  any  manner  whatsoever,  inasmuch  as  it 
might  hazard  the  national  safety.  The  same  remarks  may  be 
urged  as  to  cases  affecting  ambassadors,  other  public  ministers, 
and  consuls,  who  are  emphatically  placed  under  the  guardianship 
of  the  law  of  nations ;  and  as  to  cases  of  admiralty  and  maritime 
jurisdiction,  the  admiralty  jurisdiction  embraces  all  questions  of 
prize  and  salvage,  in  the  correct  adjudication  of  which  foreign 
nations  are  deeply  interested ;  it  embraces  also  maritime  torts,  con- 
tracts, and  offences,  in  which  the  principles  of  the  law  and  comity 
of  nations  often  form  an  essential  inquiry.  All  these  cases,  then, 
enter  iuto  the  national  po]ic.y,  affect  the  national  rights,  and  may 
comproinit  the  national  sovereignty.  The  original  or  appellate  ju- 
risdiction ought  not,  therefore,  to  be  restrained,  but  should  be 
commensurate  with  the  mischiefs  intended  to  be  remedied,  and, 
of  course,  should  extend  to  all  cases  whatsoever. 

A  different  policy  might  well  be  adopted  in  reference  to  the 
second  class  of  cases;  for  although  it  might  bo  fit  that  the  judicial 
power  should  extend  to  all  controvorsics  to  which  the  United  States 
should  be  a  party,  yet  this  power  might  not  have  been  imperatively 


Introduction  7 

given,  least  it  should  imply  a  right  to  take  cognizance  of  original 
suits  brought  against  the  United  States  as  defendants  in  their 
own  courts.  It  might  not  have  been  deemed  proper  to  submit  the 
sovereignty  of  the  United  States,  against  their  own  will,  to  judicial 
cognizance,  either  to  enforce  rights  or  to  prevent  wrongs;  and  as 
to  the  other  eases  of  the  second  class,  they  might  well  be  left  to 
be  exercised  under  the  exceptions  and  regulations  which  Congress 
might,  in  their  wisdom,  choose  to  apply.  It  is  also  worthy  of  re- 
mark, that  Congress  seem,  in  a  good  degree,  in  the  establishment 
of  the  present  judicial  system,  to  have  adopted  this  distinction. 
In  the  first  class  of  cases,  the  jurisdiction  is  not  limited  except 
by  the  subject  matter;  in  the  second,  it  is  made  materially  to  de- 
pend upon  the  value  in  controversy.^ 


MECHANICS'  AND  TRADERS'  BANK  v.  UNION  BANK. 

Supreme  Court  of  tJie  United  States.    1874. 
89  V.  S.  (22  Wallace)  276,  22  L.  Ed.  871. 
Mr.  Justice  Strong  delivered  the  opinion  of  the  court. 

The  facts  of  this  case,  so  far  as  they  are  necessary  to  a  proper 
understanding  of  the  question  raised,  are  the  following : 

In  May,  1862,  after  the  capture  of  New  Orleans  by  the  United 
States  army,  General  Butler,  then  in  command  of  the  army  at  that 
place,  issued  a  general  order  appointing  Major  J.  M.  Bell,  volun- 
teer aid-de-camp,  of  the  division  staff,  provost  judge  of  the  city, 
and  directed  that  he  should  be  obeyed  and  respected  accordingly. 
The  same  order  appointed  Captain  J.  H.  French  provost  marshal 
of  the  city,  and  Captain  Stafford  deputy  provost  marshal.  A 
few  days  after  this  order  the  Union  Bank  lent  to  the  plaintiffs  the 
sum  of  $130,000,  and  subsequently,  the  loan  not  having  been  re- 
paid, brought  suit  before  the  provost  judge  to  recover  the  debt. 
The  defence  was  taken  that  the  judge  had  no  jurisdiction  over 

3  Mr.  Justice  Miller,  delivering  the  opinion  of  the  conrt  in  the  United  States 
V.  Union  Pacific  R.  R.  Co.,  98  U.  S.  569,  602-603,  25  L.  Ed.  143,  150  (1878), 
said:  "With  the  exception  of  the  Supreme  Court,  the  authority  of  Congress 
in  creating  courts  and  conferring  on  them  all  or  much  or  little  of  the  judicial 
power  of  the  United  States,  is  unlimited  by  the  Constitution." — Ed. 


8  Cases  on  Federal  Procedure 

civil  cases,  but  judgment  was  given  against  the  borrowers,  aiid 
they  paid  the  money  under  protest.  To  recover  it  back  is  the 
object  of  the  present  suit,  and  the  contention  of  the  plaintiffs 
is  that  the  judgment  was  illegal  and  void,  because  the  Provost 
Court  had  no  jurisdiction  of  the  ease.  The  judgment  of  the  Dis- 
trict Court  was  against  the  plaintiffs,  and  this  judgment  was 
affirmed  by  the  Supreme  Court  of  the  State.  To  this  affirmance 
error  is  now  assigned. 

The  argument  of  the  plaintiffs  in  error  is  that  the  establish- 
ment of  the  Provost  Court,  the  appointment  of  the  judge,  and 
his  action  as  such  in  the  case  brought  by  the  Union  Bank  against 
them  were  invalid,  because  in  violation  of  the  Constitution  of  the 
United  States,  which  vests  the  judicial  power  of  the  General  Gov- 
ernment in  one  Supreme  Court  and  in  such  inferior  courts  as 
Congress  may  from  time  to  time  ordain  and  establish,  and  that 
under  this  constitutional  provision  they  were  entitled  to  immunity 
from  any  liability  imposed  by  the  judgment  of  the  Provost  Court. 
Thus,  it  is  claimed,  a  Federal  question  is  presented,  and  the  high- 
est court  of  the  State  having  decided  against  the  immunity  claimed, 
our  jurisdiction  is  invoked. 

Assuming  that  the  case  is  thus  brought  within  our  right  to  re- 
view it,  the  controlling  question  is  whether  the  commanding  gen- 
eral of  the  army  which  captured  New  Orleans  and  held  it  in  May, 
1862,  had  authority  after  the  capture  of  the  city  to  establish  a 
court  and  appoint  a  judge  with  power  to  try  and  adjudicate  civil 
causes.  Did  the  Constitution  of  the  United  States  prevent  the 
creation  of  civil  courts  in  captured  districts  during  the  war  of 
the  rebellion,  and  their  creation  by  military  authority? 

This  cannot  be  said  to  be  an  open  question.  The  subject  came 
under  consideration  by  this  court  in  The  Grapeshot,^  where  it 
was  decided  that  when,  during  the  late  civil  war,  portions  of  the 
insurgent  territory  were  occupied  by  the  National  forces,  it  was 
within  the  constitutional  authority  of  the  President,  as  commander 
in  chief,  to  establish  therein  provisional  courts  for  the  hearing 
and  determination  of  all  causes  arising  under  the  laws  of  the  State 
or  of  the  United  States,  and  it  was  ruled  that  a  court  instituted 
by  President  Lincoln  for  the  State  of  Louisiana,  with  authority 
to  hoar,  try,  and  determine  civil  causes,  was  lawfully  authorized 
to  exercise  such  jurisdiction.  Its  esta])lishmont  by  military  au- 
thority was  held  to  be  no  violation  of  the  constitutional  provision 

19  Wall.iPo  12f). 


Introduction  9 

that  "the  judicial  power  of  the  United  States  shall  be  vested  in 
one  Supreme  Court  and  in  such  inferior  courts  as  the  Congress 
may  from  time  to  time  ordain  and  establish."  That  clause  of 
the  Constitution  has  no  application  to  the  abnormal  condition  of 
conquered  territory  in  the  occupancy  of  the  conquering  army. 
It  refers  only  to  courts  of  the  United  States,  which  military  courts 
are  not.  As  was  said  in  the  opinion  of  the  court,  delivered  by 
Chief  Justice  Chase,  in  The  Grapeshot,  "It  became  the  duty  of 
the  National  Government,  wherever  the  insurgent  power  was  over- 
thro\\Ti,  and  the  territory  which  had  been  dominated  by  it  was 
occupied  by  the  National  forces,  to  provide,  as  far  as  possible,  so 
long  as  the  war  continued,  for  the  security  of  persons  and  prop- 
erty and  for  the  administration  of  justice.  The  duty  of  the  Na- 
tional Government  in  this  respect  was  no  other  than  that  which 
devolves  upon  a  regular  belligerent,  occupying  during  war  the 
territory  of  another  belligerent.  It  was  a  military  duty,  to  be  per- 
formed by  the  President,  as  commander  in  chief,  and  intrusted  as 
such  with  the  direction  of  the  military  force  by  which  the  occupa- 
tion was  held. ' '  ^ 


In  re  BARRY. 

Circuit  Court,  8.  D.  New  York.     1844. 

42  Fed.  113. 

Betts,  J.2 —  These  sovereignties  are  left  entire,  under  the  action 
of  the  General  Government,  except  in  so  far  only  as  the  powers 
are  transferred  to  the  Federal  head  by  the  Constitution,  or  are 
by  that  prohibited  to  the  States,  or,  in  some  few  instances,  are 
allotted  to  be  exercised  concurrently  by  the  two  governments.  The 
United  States  judiciary  is  constituted  and  put  in  action  in  the 
several  States,  in  subordination  to  this  fundamental  principle  of 

1  Only  a  portion  of  the  opinion  is  reprinted. 

Mr.  Justice  Field  dissented  on  the  ground  that  the  Provost  Court  had  not 
jurisdiction  in  civil  cases. 

See  also  Santiago  v.  Nogueras,  214  TJ.  S.  260,  263-367,  29  S.  Ct.  608,  53 
L.  Ed.  989,  990-991  (1909). 

Compare  Walsh  v.  Porter,  68  Tennessee  (12  Heiskell)  401  (1873);  Narciso 
Basso  V.  The  United  States,  40  Ct.  CI.  202,  212  (1905).— Ed. 

2  Only  a  portion  of  the  opinion  is  reprinted. — Ed. 


10  Cases  on  Federal  Procedure 

the  Union,  and  empowered  to  exercise  only  such  peculiar  and 
special  supremacy,  and  not  one  in  its  absolute  sense.  To  render 
this  connection  of  the  United  States  judiciary  with  that  of  the 
States  more  intimate  and  entire,  and  to  take  away  all  implication 
that  it  was  a  paramount  power,  acting  irrespective  of  State  laws, 
or  that  it  possessed,  or  could  exercise,  any  inherent  jurisdiction 
countervailing  those  laws,  the  act  of  Congress  organizing  the 
courts  establishes  it  as  an  element  in  their  procedure  that  the  laws 
of  the  State  where  the  court  sits  shall  be  its  rule  of  decision  in  com- 
mon-law cases.  It  necessarily  results,  as  a  consequence  of  this 
special  character  of  the  United  States  judiciary,  that  it  can  possess 
no  poAvers  other  than  those  specifically  conferred  by  the  Consti- 
tution or  laws  of  the  Union,  and  such  incidents  thereto  as  are 
necessary  to  the  proper  execution  of  its  jurisdiction.  All  other 
judicial  powers  necessary  to  the  complement  of  supreme  authority 
remain  with,  and  are  exercised  by,  the  States.  This  doctrine  is 
sufficiently  indicated  in  the  decision  of  the  Supreme  Court  made 
in  this  case  at  the  last  term,  and  it  has  been  invariably  recognized 
from  the  earliest  adjudications  of  the  court.  Chisholm  v.  Georgia, 
2  Dall.  432,  435 ;  Ex  parte  Bollman,  4  Cranch  75 ;  Ex  parte  Wat- 
kins,  3  Pet.  201;  Kendall  v.  U.  S.,  12  Pet.  524.  The  jurisdiction 
of  the  United  States  courts  depends  exclusively  on  the  Constitution 
and  laws  of  the  United  States,  and  they  can  neither  in  criminal 
nor  civil  cases  resort  to  the  common  law  as  a  source  of  jurisdic- 
tion. U.  S.  V.  Hudson  7  Cranch.  32 ;  U.  S.  v.  Coolidge,  1  Wheat. 
415;  Chisholm  v.  Georgia,  2  Dall.  432;  Ex  parte  Bollman,  4 
Cranch  75 ;  Town  of  Pawlet  v.  Clark,  9  Cranch  333 ;  Ex  parte  Ran- 
dolph, 2  Brock.  477;  Craig  v.  Missouri,  4  Pet.  444;  Wheaton  v. 
Peters,  8  Pet.  658 ;  The  Orleans  v.  Phoebus,  11  Pet.  175 ;  Kendall 
v.  U.  S.,  12  Pet.  524. 

It  is  now  argued  that  this  principle  is  limited  to  the  Supreme 
Court,  but  that,  in  respect  to  the  circuit  courts,  they  have  a  com- 
mon-law jurisdiction  incident  to  their  constitution,  inasmuch  as 
judicial  sovereignty  resides  in  them,  rendering  the  range  of  their 
original  jurisdiction  coextensive  with  the  subjects  of  litigation 
arising  under  the  Constitution  and  laws  of  the  United  States,  and 
because  all  remedies  not  otherwise  provided  are,  in  the  exercise 
of  that  jiulif'i;il  sovereignty,  to  be  in  conformity  to  the  common 
law.  Although  the  speculations  of  our  most  eminent  jurists  may 
countenance  this  argument  (Dup.  Jur.  85;  1  Kent,  Comm.  341), 
yot  it  has  not  rcfcivrd  the  sanction  of  the  TTnitod  States  courts. 
Chisholm  v.  Georgia,  2  Dall.  435;  Kendall  v.  U.  S.,  12  Pet.  616, 
per  curiam,  and  626,  Chief  Justice  Taney;  Ex  parte  Bollman,  4 


Introduction  11 

Cranch  75 ;  Chief  Justice  Marshall,  Ex  parte  Randolph,  2  Brock. 
477 ;  Lorman  v.  Clarke,  2  McLean,  569.  The  distinction  established 
by  the  cases  is  clear  and  practical,  and  embraces  all  United  States 
courts  alike,  and  is,  in  effect,  that  those  courts  derive  no  juris- 
diction from  the  common  law,  but  that,  in  those  cases  in  which 
jurisdiction  is  appointed  by  statute,  and  attaches,  the  remedies  in 
these  courts  are  to  be  according  to  the  principles  of  the  common 
law.  Bains  v.  The  James  and  Catherine,  1  Baldw.  558;  Robin- 
son V.  Campbell,  3  Wheat.  223;  U.  S.  v.  Hudson,  7  Cranch  32; 
Ex  parte  Kearney,  7  Wheat.  38;  Anderson  v.  Dunn,  6  Wheat. 
204;  Ex  parte  Randolph,  2  Brock.  477.  It  is  not,  accordingly, 
conclusive  of  their  right  to  take  cognizance  of  the  subject-matter, 
to  show  that  the  parties  connected  therewith  are  competent  to 
sue  or  be  sued  in  the  United  States  courts,  and  that  there  is  perfect 
right  of  action  or  defense  thereupon  supplied  such  parties  at 
common  law.  The  evidence  must  go  further,  and  prove  that  the 
particular  subject-matter  is  one  over  which  the  courts  are  by  act 
of  Congress  appointed  to  act,  or  that  the  question  has  relation  to 
the  remedy  alone,  and  not  to  the  jurisdiction  of  the  court.  U.  S. 
V.  Bevans,  3  Wheat.  389 ;  McCulloh  v.  Maryland,  4  Wheat.  407 ; 
Rhode  Island  v.  Massachusetts,  12  Pet.  721.1 


UNITED  STATES  v.  BURLINGTON  AND  HENDERSON 
COUNTY  FERRY  CO. 

District  Court,  S.  D.  Iowa.    1884. 

21  Fed.  331. 

Love,  J. — In  order  to  give  jurisdiction  to  a  Federal  Court  in  any 
case  whatever,  the  Constitution  and  the  statute  law  must  concur. 
It  is  not  sufficient  that  the  jurisdiction  may  be  found  in  the  Con- 
stitution or  the  law.  The  two  must  co-operate ;  the  Constitution  as 
the  fountain,  and  the  laws  of  Congress  as  the  streams  from  which 

1  Compare  Fitch  v.  Creighton,  65  U.  S.  (24  Howard)  159,  162,  16  L.  Ed. 
596,  598   (1860). 

To  the  effect  that  "in  the  construction  of  the  laws  of  Congress,  the  rules 
of  the  common  law  furnish  the  true  guide, ' '  see  Eice  v.  Railroad  Company, 
66  U.  S.  (1  Black)  358,  374-375,  17  L.  Ed.  147,  152  (1862), 

Federal  Courts,  having  been  given  power  to  act,  may  look  to  the  common 
law  to  determine  the  proper  mode  of  procedure,  when  no  procedural  pro- 
visions are  made  by  Congress.  State  of  Pennsylvania  v.  Wheeling,  etc., 
Bridge  Co.,  54  U.  S.   (13  Howard)  518,  563-565,  14  L.  Ed.  249,  268   (1851). 


12  Cases  on  Federal  Procedure 

and  through  which  the  waters  of  jurisdiction  flow  to  the  court. 
This  results  necessarily  from  the  structure  of  the  Federal  Govern- 
ment. It  is  a  Government  of  granted  and  limited  powers.  All 
powers  not  granted  by  the  Constitution  to  the  Federal  Government 
nor  prohibited  to  the  States  are  reserved  to  the  States  or  the  peo- 
ple. The  great  residuum  of  legislative,  executive,  and  judicial 
power  remains  in  the  States.  With  respect  to  the  Federal  Gov- 
ernment, the  question  always  is,  what  powers  are  granted?  with 
regard  to  the  States,  what  powers  are  prohibited  ?  ^ 


DEED  SCOTT  v.  SANDFORD. 

Supreme  Court  of  the  United  States.    1857. 

60  U.  S.  (19  Howard)  393,  15  L.  Ed.  691. 

Mr.  Chief  Justice  Taney  delivered  the  opinion  of  the  court.^ 

This  case  has  been  twice  argued.  After  the  argument  at  the 
last  term,  differences  of  opinion  were  found  to  exist  among  the 
members  of  the  court ;  and  as  the  questions  in  controversy  are  of 
the  highest  importance,  and  the  court  was  at  that  time  much 
pressed  by  the  ordinary  business  of  the  term,  it  was  deemed  ad- 
visable to  continue  the  case,  and  direct  a  re-argument  on  some  of 
the  points,  in  order  that  we  might  have  an  opportunity  of  giving 
to  the  whole  subject  a  more  deliberate  consideration.  It  has  ac- 
cordingly been  again  argued  bj^  counsel,  and  considered  by  the 
court ;  and  I  now  proceed  to  deliver  its  opinion. 

There  are  two  leading  questions  presented  by  the  record: 

1.  Had  the  Circuit  Court  of  the  United  States  jurisdiction  to 
hear  and  determine  the  case  between  these  parties?    And 

2.  If  it  had  jurisdiction,  is  the  judgment  it  has  given  erroneous 
or  not? 

The  plaintiff  in  error,  who  was  also  the  plaintiff  in  the  court 
below,  was,  with  his  wife  and  children,  held  as  slaves  by  the  de- 
fendant, in  the  State  of  Missouri ;  and  he  brought  this  action  in 
tlie  Circuit  Court  of  tlie  United  States  for  that  district,  to  assert 
the  title  of  himself  and  his  family  to  freedom. 

The  declaration  is  in  the  form  usually  adopted  in  that  State 
to  try  questions  of  this  description,  and  coTitains  the  averment 
necessary  to  give  the  court  juiisdic^tion  ;  lliat   he  and  the  defend- 

1  Only  a  portion  of  flu'  opinion  is  reprinted. — Ed. 

2  Only   .1    |if.rli(iii   of   tin'   ii|iini(in    is   rcprintccl. — Ed. 


Introduction  13 

ant  are  citizens  of  different  States;  that  is,  that  he  is  a  citizen  of 
Missouri,  and  the  defendant  a  citizen  of  New  York. 

The  defendant  pleaded  in  abatement  to  the  jurisdiction  of  the 
court,  that  the  plaintiff  was  not  a  citizen  of  the  State  of  Missouri, 
as  alleged  in  his  declaration,  being  a  negro  of  African  descent, 
whose  ancestors  were  of  pure  African  blood,  and  who  were  brought 
into  this  country  and  sold  as  slaves. 

To  this  plea  the  plaintiff  demurred,  and  the  defendant  joined 
in  demurrer.  The  court  overruled  the  plea,  and  gave  judgment 
that  the  defendant  should  answer  over.  And  he  thereupon  put  in 
sundry  pleas  in  bar,  upon  which  issues  were  joined ;  and  at  the 
trial  the  verdict  and  judgment  were  in  his  favor.  Whereupon  the 
plaintiff  brought  this  writ  of  error. 

Before  we  speak  of  the  pleas  in  bar,  it  will  be  proper  to  dispose 
of  the  questions  which  have  arisen  on  the  plea  in  abatement. 

That  plea  denies  the  right  of  the  plaintiff  to  sue  in  a  court  of 
the  United  States,  for  the  reasons  therein  stated. 

If  the  question  raised  by  it  is  legally  before  us,  and  the  court 
should  be  of  opinion  that  the  facts  stated  in  it  disqualify  the  plain- 
tiff from  becoming  a  citizen,  in  the  sense  in  which  that  word  is 
used  in  the  Constitution  of  the  United  States,  then  the  judgment 
of  the  Circuit  Court  is  erroneous,  and  must  be  reversed. 

It  is  suggested,  however,  that  this  plea  is  not  before  us;  and 
that  as  the  judgment  in  the  court  below  on  this  plea  was  in  favor 
of  the  plaintiff,  he  does  not  seek  to  reverse  it,  or  bring  it  before  the 
court  for  revision  by  his  writ  of  error ;  and  also  that  the  defendant 
waived  this  defence  by  pleading  over,  and  thereby  admitted  the 
jurisdiction  of  the  court. 

But,  in  making  this  objection,  we  think  the  peculiar  and  limited 
jurisdiction  of  the  courts  of  the  United  States  has  not  been  ad- 
verted to.  This  peculiar  and  limited  jurisdiction  has  made  it 
necessary,  in  these  courts,  to  adopt  different  rules  and  principles 
of  pleading,  so  far  as  jurisdiction  is  concerned,  from  those  which 
regulate  courts  of  common  law  in  England,  and  in  the  different 
States  of  the  Union  which  have  adopted  the  common-law  rules. 

In  these  last-mentioned  courts,  where  their  character  and  rank 
are  analogous  to  that  of  a  Circuit  Court  of  the  United  States ;  in 
other  words,  where  they  are  what  the  law  terms  courts  of  general 
jurisdiction;  they  are  presumed  to  have  jurisdiction,  unless  the 
contrary  appears.  No  averment  in  the  pleadings  of  the  plaintiff 
is  necessary,  in  order  to  give  jurisdiction.  If  the  defendant  objects 
to  it,  he  must  plead  it  speciallj^  and  unless  the  fact  on  which  he 
relies  is  found  to  be  true  by  a  jury,  or  admitted  to  be  true  by  the 


14  Cases  on  Federal  Procedure 

plaintiff,  the  jurisdiction  cannot  be  disputed  in  an  appellate  court. 

Now,  it  is  not  necessary  to  inquire  whether  in  courts  of  that 
description  a  party  who  pleads  over  in  bar,  when  a  plea  to  the 
jurisdiction  has  been  ruled  against  him,  does  or  does  not  waive 
his  plea ;  nor  whether  upon  a  judgment  in  his  favor  on  the  pleas 
in  bar,  and  a  writ  of  error  brought  hy  the  plaintiff,  the  question 
upon  the  plea  in  abatement  would  be  open  for  revision  in  the 
appellate  court.  Cases  that  may  have  been  decided  in  such  courts, 
or  rules  that  may  have  been  laid  down  by  common-law  pleaders, 
can  have  no  influence  in  the  decision  in  this  court.  Because,  under 
the  Constitution  and  laws  of  the  United  States,  the  rules  which 
govern  the  pleadings  in  its  courts,  in  questions  of  jurisdiction, 
stand  on  different  principles  and  are  regulated  by  different  laws. 

This  difference  arises,  as  we  have  said,  from  the  peculiar  char- 
acter of  the  Government  of  the  United  States,  For  although  it  is 
sovereign  and  supreme  in  its  appropriate  sphere  of  action,  yet  it 
does  not  possess  all  the  powers  which  usually  belong  to  the  sover- 
eignty of  a  nation.  Certain  specified  powers,  enumerated  in  the 
Constitution,  have  been  conferred  upon  it ;  and  neither  the  legisla- 
tive, executive,  nor  judicial  departments  of  the  Government  can 
lawfully  exercise  any  authority  beyond  the  limits  marked  out  by 
the  Constitution.  And  in  regulating  the  judicial  department,  the 
cases  in  which  the  courts  of  the  United  States  shall  have  juris- 
diction are  particularly  and  specifically  enumerated  and  defined; 
and  the}''  are  not  authorized  to  take  cognizance  of  any  case  which 
does  not  come  within  the  description  therein  specified.  Hence, 
when  a  plaintiff  sues  in  a  court  of  the  United  States,  it  is  neces- 
sary that  he  should  show,  in  his  pleading,  that  the  suit  he  brings 
is  within  the  jurisdiction  of  the  court,  and  that  he  is  entitled  to 
sue  there.  And  if  he  omits  to  do  this,  and  should,  by  any  over- 
sight of  the  Circuit  Court,  obtain  a  judgment  in  his  favor,  the 
judgment  would  be  reversed  in  the  appellate  court  for  want  of 
jurisdiction  in  the  court  below.  The  jurisdiction  would  not  be 
presumed,  as  in  the  case  of  a  common-law  English  or  State  court, 
unless  the  contrary  appeared.  But  the  record,  when  it  comes  before 
the  appellate  court,  must  show,  affirmatively,  that  the  inferior 
court  had  authority,  under  the  Constitution,  to  hear  and  determine 
the  case.  And  if  the  plaintiff  claims  a  right  to  sue  in  a  Circuit 
(.'ourt  of  the  United  States,  under  that  provision  of  the  Constitu- 
tion which  gives  jurisdiction  in  controversies  between  citizens  of 
(lifffTcnt  States,  he  must  distinctly  aver  in  his  pleading  that  they 
are  citizr-ns  of  different  States;  and  ho  cannot  maintain  his  suit 
without  showing  that  fact  in  the  pleadings. 


Introduction  15 

This  point  was  decided  in  the  case  of  Bingham  v.  Cabot  (in 
3  Dall.  382),  and  ever  since  adhered  to  by  the  court.  And  in 
Jackson  v.  Ashton  (8  Pet.  148),  it  was  held  that  the  objection  to 
which  it  was  open  could  not  be  waived  by  the  opposite  party,  be- 
cause consent  of  parties  could  not  give  jurisdiction. 

It  is  needless  to  accumulate  cases  on  this  subject.  Those  al- 
ready referred  to,  and  the  cases  of  Capron  v.  Van  Noorden  (in 
2  Cr.  126),  and  Montalet  v.  Murray  (4  Cr.  46),  are  sufficient  to 
show  the.  rule  of  which  we  have  spoken.  The  case  of  Capron  v. 
Van  Noorden  strikingly  illustrates  the  difference  between  a  com- 
mon-law court  and  a  court  of  the  United  States. 

If,  however,  the  fact  of  citizenship  is  averred  in  the  declara- 
tion, and  the  defendant  does  not  deny  it,  and  put  it  in  issue  by  plea 
in  abatement,  he  cannot  offer  evidence  at  the  trial  to  disprove  it, 
and  consequently  cannot  avail  himself  of  the  objection  in  the  ap- 
pellate court,  unless  the  defect  should  be  apparent  in  some  other 
part  of  the  record.  For  if  there  is  no  plea  in  abatement,  and  the 
want  of  jurisdiction  does  not  appear  in  any  other  part  of  the  tran- 
script brought  up  by  the  writ  of  error,  the  undisputed  averment  of 
citizenship  in  the  declaration  must  be  taken  in  this  court  to  be 
true.  In  this  case,  the  citizenship  is  averred,  but  it  is  denied  by 
the  defendant  in  the  manner  required  by  the  rules  of  pleading, 
and  the  fact  upon  which  the  denial  is  based  is  admitted  by  the 
demurrer.  And,  if  the  plea  and  demurrer,  and  judgment  of  the 
court  below  upon  it,  are  before  us  upon  this  record,  the  question 
to  be  decided  is,  whether  the  facts  stated  in  the  plea  are  sufficient 
to  show  that  the  plaintiff  is  not  entitled  to  sue  as  a  citizen  in  a 
court  of  the  United  States.^ 

1  The  facts  essential  to  support  the  jurisdiction  of  the  federal  court  need 
not  be  averred.  It  is  sufficient  if  they  appear  somewhere  in  the  record,  but 
one  must  be  careful  to  determine  what  is,  and  what  is  not,  properly  a  part  of 
record.  Robertson  v.  Cease,  97  U.  S.  646,  648,  24  L.  Ed.  1057,  1058  (1878); 
Denny  v.  Pironi,  141  U.  S.  121,  11  S.  Ct.  966,  35  L.  Ed.  65  (1891);  Gordon 
V.  Third  National  Bank,  114  U.  S.  97,  98,  103,  12  S.  Ct.  657,  658,  659,  36 
L.  Ed.  360,  361-362   (1892). 

As  to  the  presumption  of  jurisdiction  in  proceedings  not  collateral,  see 
Robertson  v.  Cease,  97  U.  S.  646,  649-650,  24  L.  Ed.  1057  (1878).  But,  as 
to  collateral  proceedings,  see  The  Chemung  Canal  Bank  v.  Judson,  8  N.  Y. 
(4  Selden)  254,  258-262  (1853). 

The  federal  courts  may,  of  their  own  accord,  raise  the  question  of  jurisdic- 
tion. King  Bridge  Co.  v.  Otoe  County,  120  U.  S.  225,  226,  7  S.  Ct.  552,  30 
L.  Ed.  623,  624  (1887). 

The  question  of  jurisdiction  is  one  independent  of  the  merits.  Kirven  v. 
Virginia-Carolina  Chemical  Co.,  145  Fed.  288,  291-292,  76  C.  A.  172,  175-176 
(1906). 

As  to  the  burden  of  proving  jurisdiction,  see  Wiemer  v.  Louisville  Water 
Co.,  130  Fed.  244  (1903).— Ed. 


CHAPTER  II. 

DISTRICT  COURTS. 

SECTION  I. 

Organization. 

McGLASHAN  v.  UNITED  STATES. 

Circuit  Court  of  Appeals,  Seventh  Circuit.    1896. 

71  Fed.  434,  18  C.  C.  A.  172. 

Jenkins,  Circuit  Judge,  after  stating  the  facts,  delivered  the 
opinion  of  the  court. 

The  sole  question  presented  for  decision  to  the  court  below  was 
whether  the  surety  was  relieved  from  the  obligation  of  the  recog- 
nizance by  reason  of  certain  proceedings  of  the  District  Court  of 
the  United  States  for  the  district  of  Kansas,  subsequent  to  the 
alleged  forfeiture  of  the  recognizance,  which  resulted  in  the  entry 
by  that  court  of  a  nolle  prosequi.  We  are  relieved  from  the  neces- 
sity of  passing  upon  the  correctness  of  the  conclusion  reached  by 
the  court  below,  because  we  are  satisfied  that,  upon  grounds  not 
presented  to  the  consideration  of  the  Circuit  Court,  and  neither 
considered  nor  determined  there,  the  action  cannot  be  maintained. 
By  the  second  section  of  chapter  13  of  an  act  approved  January 
6,  1883,  entitled  "An  act  to  provide  for  holding  a  term  of  the 
District  Court  of  the  United  States,  at  Wichita,  Kansas,  and  for 
other  purposes,"  it  is  provided  that  a, certain  part  of  the  Indian 
Territory  (within  which  the  offense  charged  against  McGlashan 
was  committed)  should  be  annexed  to  and  constitute  part  of  the 
United  Slates  Judicial  District  of  Kansas,  and  that  the  United 
States  District  courts  at  Wichita  and  Ft.  Scott,  in  the  district  of 
Kansas,  should  have  original  jurisdiction  of  the  offenses  committed 
within  the  limits  of  the  territory  so  annexed  to  the  district  of 
Kansas.     The  act  also  provided  that  there  should  be  one  term  of 

16 


District  Courts  17 

the  United  States  District  Court  for  the  district  of  Kansas  held 
at  Wichita  in  each  year  on  the  first  Monday  of  September.  22 
Stat.  400.  The  Act  of  March  3,  1879  (20  Stat.  355,  c.  177),  pro- 
vided that  there  should  be  one  term  of  the  United  States  District 
and  Circuit  courts  for  the  district  of  Kansas  held  in  the  City  of  Ft. 
Scott  in  each  year,  to  be  held  on  the  second  Monday  of  January. 
This  statute,  however,  provided  that  no  cause,  action,  or  proceeding 
should  be  tried  or  considered  in  that  court  unless  by  consent  of  all 
the  parties  thereto,  or  by  order  of  the  court  for  cause.  This  was 
the  condition  of  the  law,  with  respect  to  the  terms  of  court  to  be 
held  at  the  two  places  named,  at  the  time  that  this  recognizance 
was  entered  into.  By  an  act  of  Congress,  approved  June  9,  1890 
(26  Stat.  129,  c.  403),  the  district  of  Kansas  was  divided  into  two 
divisions,  to  be  known,  respectively,  as  the  First  and  Second  di- 
visions of  the  district  of  Kansas,  these  divisions,  respectively,  em- 
bracing certain  counties  named.  The  city  of  Wichita  was  located 
within  the  Second  division,  and  the  act  provided  that  the  terms 
of  the  Circuit  and  District  courts  for  that  district  should  be  held 
in  the  Second  division  of  the  city  of  Wichita  on  the  first  Monday 
of  March  and  the  second  Monday  of  September  in  each  year.  It 
is  provided  by  Rev.  St.  §  573,  that  "no  action,  suit  or  process  in 
any  District  Court  shall  abate  or  be  rendered  invalid  by  reason 
of  any  acts  changing  the  time  of  holding  such  courts ;  but  the  same 
shall  be  deemed  to  be  returnable  to,  pending,  and  triable  in  the 
terms  established  next  after  the  return  day  thereof."  For  some 
reason  not  made  known  to  us  the  District  Court  of  the  United 
States  for  the  district  of  Kansas  convened  at  Wichita  on  the  first 
Monday  of  September,  1890,  and  held  a  session  at  which  this 
recognizance  was  forfeited  for  nonappearance  of  the  principal 
therein,  and  this  attempted  forfeiture  took  place  before  the  second 
Monday  of  September,  the  date  specified  in  the  act  of  June  9,  1890. 
We  are  unable  to  understand  by  what  authority  of  law  the  Dis- 
trict Court  was  convened  upon  the  first  Monday  of  September, 
1890.  It  is  true  that  the  act  of  June  9,  1890  (26  Stat.  129),  does 
not  in  terms  repeal  the  provision  in  the  act  of  January  6,  1883 
(22  Stat.  400),  providing  for  a  term  of  the  court  at  Wichita  uj)on 
the  first  Monday  of  September,  but  it  manifestly  has  the  effect  to 
repeal  that  provision.  It  provides  for  two  terms  annually  in  the 
Second  division  of  the  district, — one  on  the  first  Monday  of  March, 
and  the  other  on  the  second  Monday  of  September,  in  each  year. 
It  would  be  a  strange  conclusion  to  hold  that  the  Congress  intended 
to  allow  the  former  act  to  remain  in  force  with  respect  to  the  sit- 
Wheaton  C.  F.  P.— 2 


18  Cases  on  Federal  Procedure 

ting  of  the  court  on  the  first  Monday  of  September,  when  by  the 
latter  act  two  terms  were  appointed  to  be  held  in  each  year,  in 
that  division,  and  at  Wichita, — one  of  them  upon  the  second  Mon- 
day of  September.  The  act  covered  the  subject  of  the  terms  of 
court  to  be  held  at  Wichita,  and  embraced  new  provisions,  clearly 
indicating  that  it  was  intended  as  a  substitute  for  all  previous 
provisions  designating  terms  of  court  to  be  held  at  Wichita.  It 
therefore  necessarily  operated  to  repeal  the  former  provision, 
Fisk  V.  Henarie,  142  U.  S.  459,  467,  12  Sup.  Ct.  207 ;  District  of 
Columbia  v.  Hutton,  143  U.  S.  18,  26,  12  Sup.  Ct.  369.  The  session 
of  the  court,  therefore,  which  was  assumed  to  be  held  on  the  first 
Monday  of  September,  was  held  without  authority  of  law,  and  its 
proceedings  were  inoperative  and  void.  There  was  no  obligation 
upon  the  part  of  the  principal  in  the  recognizance  to  appear  on  the 
first  Monday  of  September,  for,  although  that  was  the  date  stated 
in  the  recognizance  at  which  the  term  was  to  be  held,  yet  by  force 
of  the  general  provision  in  the  statute  to  which  we  have  referred, 
and  by  the  very  terms  of  the  recognizance,  his  obligation  was  to 
appear  at  the  next  term  appointed  by  law  to  be  held,  which  was 
upon  the  second  Monday  of  September.  It  was  not  possible  that 
the  court  could,  prior  to  the  time  appointed  by  law  for  the  holding 
of  the  term,  legally  declare  a  forfeiture  of  the  recognizance.  His 
sureties  were  not  required  to  produce  their  principal  except  at  a 
term  of  the  court  authorized  by  law.  The  date  for  the  sitting  of 
the  court  having  been  changed  subsequently  to  the  execution  of 
the  recognizance,  by  force  of  the  statute  the  recognizance  was  ef- 
fectual to  require  his  appearance  at  the  changed  date  for  the 
sitting  of  the  court,  and  could  not  be  forfeited  prior  to  that  date. 
It  is  clear  to  us  that  the  court  which  declared  the  forfeiture  in 
advance  of  the  date  fixed  by  law  for  the  convening  of  the  court 
was  acting  without  authority  of  law,  and  that  the  forfeiture  de- 
clared was  of  no  effect.  The  judgment  must  therefore  be  reversed, 
and  the  cause  remanded,  with  directions  to  the  court  below  to 
ronder  judgment  for  the  plaintiff  in  error  upon  the  findings  of  the 
court. 


U.  S.  V.  LOUGIIERY. 

Circmt  Court,  E.  I).  New  York.     1876. 

26  Fed.  Co.?.  No.   J 5,63 1,  p.  998,  IS  Blntchford,  267. 

Benedict,    District    Judge. — Tlio    defendants    were    jointly    in- 
dicted with  one  Lfwinski   for  coining.      All   three  were  put  upon 


District  Courts  19 

trial  together,  at  the  November  term.  After  several  jurors  had 
been  called  and  challenged,  and  three  had  been  found  competent 
and  sworn,  the  panel  was  found  to  be  exhausted  by  reason  of 
challenges.  The  hour  being  late,  on  the  last  day  of  the  term,  the 
court,  in  pursuance  of  section  746  of  the  Revised  Statutes,  directed 
that  the  trial  of  the  cause  be  continued  on  the  following  day,  not- 
withstanding that  such  following  day  was  the  commencement  of 
the  December  term.  The  court  also  directed  the  marshal  to  sum- 
mon talesmen  to  fill  the  panel.  On  the  day  follow^ing,  the  marshal 
returned  the  names  of  twenty-four  persons  as  in  court  ready  to 
serve  as  talesmen.  The  names  of  those  persons  were  than  placed 
in  the  box,  and  from  those  ballots  names  were  drawn  to  complete 
the  jury.  Those  persons  so  drawn,  as  they  were  called  to  be  sworn 
in  the  cause,  were  each  challenged  by  the  prisoners.  Upon  the 
trial  of  such  challenge,  it  was  proved,  by  the  oath  of  each  juryman, 
that  he  was  not  in  the  court  room,  or  about  the  court  house,  on 
the  previous  day,  when  the  order  for  talesmen  was  made,  but  had 
been  summoned  by  the  marshal  to  attend,  and  when  so  summoned 
was  not  in  the  court  room  or  about  the  court  house.  These  chal- 
lenges were  overruled.  Thereupon,  after  the  full  number  of  jurors 
had  been  sworn,  the  defendants  claimed  the  right  to  challenge  the 
array,  and  to  prove  by  the  marshal  that  the  persons  summoned  by 
him,  in  pursuance  of  the  order  for  talesmen,  were  not  bystanders 
when  so  summoned.  The  challenge  to  the  array  was  rejected,  and 
the  trial  proceeded.  After  the  evidence  on  the  part  of  the  Gov- 
vernment  was  for  the  most  part  completed,  and  during  the  night, 
these  two  defendants  broke  jail  and  escaped  from  custody.  There- 
upon, their  counsel  objected  to  further  proceedings  upon  the  in- 
dictment, in  the  absence  of  the  prisoners.  The  objection  being 
overruled,  the  counsel  for  these  defendants  withdrew,  and  the  trial 
proceeded.  The  jury  thereafter  found  a  verdict  of  guilty  against 
all  three  accused,  and  the  one  still  in  custody  was  thereupon  sen- 
tenced. Subsequently^  the  prisoners  who  had  escaped  were  caught 
and  brought  into  court  for  sentence,  whereupon  this  motion  in 
arrest  of  judgment  is  made,  upon  the  following  grounds:  First, 
that  there  was  a  mistrial,  because  the  trial  was  not  commenced 
before  a  jury  or  the  court  at  the  November  term,  within  the  mean- 
ing of  section  746  of  the  Revised  Statutes,  since  but  three  jurymen 
had  been  sworn  when  the  term  ended,  and  there  was,  therefore, 
no  power  to  continue  the  trial  upon  the  subsequent  day.  A  jury,  it 
is  said,  consists  of  twelve  men,  and  section  746  has  no  application 
to  a  case  where  a  full  jury  is  not  impanelled  before  the  term  ends. 


20  Cases  on  Federal  Procedure 

The  statute  provides,  that,  when  a  trial  has  been  commenced,  and 
is  in  progress,  before  a  jury  or  the  court,  it  shall  not  be  stayed 
or  discontinued  by  the  arrival  of  the  time  fixed  by  law  for  another 
session  of  the  court :  and  I  am  of  the  opinion  that  the  trial  of  this 
cause  was  commenced  and  in  progress  at  the  November  term,  within 
the  meaning  of  the  statute.  When  a  jurj^man  is  sworn  in  a  cause, 
a  trial  is  commenced — perhaps,  when  one  jurj-man  is  drawn  from 
the  box.  Here,  several  jurymen  had  been  drawTi,  challenges  had 
been  taken  and  tried,  and  three  jurymen  had  been  accepted  and 
sworn.  Upon  these  challenges,  questions  of  law  had  been  raised, 
and  objections  taken,  which  formed  part  of  the  record.  This  trial 
was,  therefore,  in  progress  before  either  the  court  or  the  jury,  and, 
as  I  consider,  was  in  progress  before  a  jury,  within  the  meaning 
and  intent  of  the  act.  It  was,  therefore,  lawfully  proceeded  with, 
as  if  another  stated  term  had  not  intervened.^ 


KNOTTS  V.  VIRGINIA-CAROLINA  CHEMICAL  CO. 
Circuit  Court  of  Appeals,  Eighth  Circuit.    1913. 
204  Fed.  926,  123  C.  C.  A.  248. 
Pritchard,  Circuit  Judge. 

We  will  now  consider  the  twelfth  assignment  of  error,  to  wit, 
that  the  court  below  erred  in  allowing  judgment  to  be  entered 
in  this  case  on  the  31st  day  of  July,  1912,  in  favor  of  the  plaintiff 
and  against  the  defendants,  upon  the  ground  that  the  judgment 
was  rendered  during  vacation,  and  not  at  a  regular  term  of  the 
court.  It  is  argued  in  support  of  this  contention  that  inasmuch 
as,  under  the  rules  of  the  District  Court  of  the  United  States  for 
the  district  of  Roulh  Carolina,  judgment  by  default  may  be  entered 
at  rules  and  during  vacation,  yet  tlic  court  was  not  authorized  to 
cutf'r  fituil  judgment  during  vacation,  and  only  had  the  power  to 
direct  the  sjinie  to  be  enrolltul  on  tbe  judgnicnt  docket,  and  that  a 
final  judgment  coukl  not  be  entered  until  the  next  term  of  the 
court. 

It  appears,  as  we  have  stated,  tluit  after  service  of  the  answer, 
and  of  i»I;iiriliff's  icply  thci'cto,  the  phiintilT,  upon  notice  duly 
given,  moved  i'or  an  ordei"  overruling  the  answer  as  frivolous,  and 

1  Only  a  portion  of  tlio  opinion  ia  rcprintod. — Ed. 


District  Courts  21 

for  judgment  thereon.  While  this  motion  was  noticed  for  and 
heard  upon  the  rules  day  in  July,  the  order  of  the  learned  judge 
who  heard  the  case  below  was  not  entered  until  the  22d  day  of 
July,  1912.  It  further  appears  from  the  certificate  of  the  clerk 
of  the  District  Court  that  pursuant  to  said  order  judgment  was 
entered  in  favor  of  the  plaintiff  and  against  the  defendants  on 
the  31st  day  of  July,  1912,  at  which  time  the  court  was  still  in 
session.  That  the  presiding  judge,  at  rules  and  during  vacation, 
had  the  power  to  adjudge  that  the  answer  was  frivolous,  is  un- 
doubtedly true ;  and  this  is  all  that  the  court  did  during  vacation. 
It  further  appearing  that  after  this  action  had  been  taken  by  the 
court,  and  the  case  placed  upon  the  docket,  a  final  judgment  was 
entered  while  the  court  was  in  session,  we  are  of  the  opinion  that 
the  action  of  the  lower  court  was  proper. 

Being  of  the  opinion  that  the  court  below  was  in  error  as  to 
the  claim  for  attorney's  fees,  it  follows,  from  what  we  have  said, 
that  the  judgment  in  favor  of  the  plaintiffs,  except  the  amount 
claimed  to  be  due  as  attorney's  fees,  should  be  affirmed,  and  the 
judgment  as  to  this  amount  should  be  reversed.^ 


In  re  STEVENSON. 

At  Chambers  in  St.  Louis,  Mo.     1903. 

125  Fed.  843. 

Stevenson  made  an  application  for  a  writ  of  h£.beas  corpus  to 
secure  his  release  from  the  United  States  penitentiary  at  Ft. 
Leavenworth,  Kan.,  where  he  was  serving  out  a  term  of  imprison- 
ment imposed  upon  him  on  May  13,  1901,  by  Judge  Thomas.  The 
judge  had  been  assigned  to  hold  a  term  of  court,  which  was  to  end 
on  May  4,  1901.  He  adjourned  the  court  to  May  6,  1901,  and,  as 
above  stated,  sentenced  Stevenson  thereafter.  Stevenson  claimed 
that  the  judge  had  no  power  to  thus  sentence  him,  since  the  original 
term  of  court  had  expired  when  this  was  done,  and  at  that  time 
the  judge  was  not  holding  a  special  term  of  court.  If  he  had  been 
holding  a  special  term  of  court  when  the  sentence  was  imposed, 
it  would  have  been  valid  according  to  a  Federal  statute. 

I  Only  a  portion  of  the  opinion  is  reprinted. — Ed. 


02 


Cases  on  Federal  Procedure 


Thayer,  Circuit  Judge. — It  is  said,  however,  that  on  May  4, 
1901,  no  formal  order  was  made  prolonging  the  term  or  appointing 
a  special  session,  but  that  the  court  merely  adjourned  to  the  fol- 
lowing Monday,  Such  action  on  the  part  of  Judge  Thomas  was 
full}^  tantamount,  in  my  judgment,  to  ordering  a  special  session 
to  begin  the  following  Monday,  The  law  looks  at  the  substance 
of  things,  rather  than  the  form,  and,  where  a  court  possesses  the 
power  to  appoint  and  hold  a  special  term  of  court  at  a  future  day, 
it  matters  ver}^  little  whether  it  adjourns  to  that  day,  as  in  the 
case  in  hand,  or  adjourns  the  term  which  it  is  holding  shie  die, 
and  at  the  same  moment  appoints  a  special  session  for  such  future 
day.  In  either  event,  the  same  result  is  accomplished,  and,  if 
litigants  in  cases  pending  before  it  are  given  notice  by  the  order 
of  adjournment  that  the  court  will  resume  its  sessions  on  a  certain 
future  day,  it  would  seem  that  they  are  not  prejudiced,  and  have 
no  just  ground  to  complain,  although  the  court  does  not  make  a 
formal  order  calling  a  special  session.  If  the  power  to  appoint  and 
hold  a  special  session  resides  in  the  judge,  it  would  seem  that  the 
manner  and  form  of  its  exercise  is  not  of  much  importance,  unless 
a  statute  requires  the  power  to  be  exercised  in  some  particular 
manner.  United  States  v.  The  Little  Charles,  26  Fed.  Cas.  982, 
1  Brook.  380;  Mattingly  v.  Darwin,  23  111,  567.1 


SCHOFIELD  V,  HORSE  SPRINGS  CATTLE  CO. 

Circuit  Court,  D.  Montana.    1895. 

65  Fed.  433. 

This  was  a  suit  hy  John  W.  Schofield,  receiver  of  the  Albu- 
querque National  Bank  of  New  IMexico,  against  the  Horse  Springs 
Cattle  Company,  W,  B.  Slaughter,  and  D.  C.  Kyle,  A  decree  pro 
confesso  was  entered  against  all  of  the  defendants  on  the  29th 
day  of  June,  1894,  A  motion  was  made  August  6,  1894,  to  set 
aside  this  decree.  The  other  important  facts  bearing  upon  the 
I)oint  involved  in  this  reprint  are  found  in  the  opinion.^ 

1  The  facts  arc  rostatpd,  and  only  a  jjortion  of  the  opinion  is  reprinted. — Ed, 

2  The  faetH  arc  restated  in  part  and  only  a  portion  of  the  opinion  is  re- 
printed.— Ed, 


District  Courts  23 

Knowles,  District  Judge. — This  case  is  further  complicated  from 
the  fact  that  on  the  3d  day  of  July,  1894,  this  court  adjourned  to 
the  12th  of  said  month.  That  on  said  last-named  date,  by  a  tele- 
gram in  writing,  the  judge  holding  said  court  ordered  said  court 
adjourned  until  the  19th  day  of  said  month.  On  that  day  the 
said  judge  telephoned  to  the  clerk  of  said  court  an  order  that  said 
court  be  adjourned  until  the  6th  day  of  August  following.  On 
the  said  6th  day  of  August  the  aforesaid  motion  was  called  to 
the  attention  of  the  court  and  argued.  Owing  to  the  doubt  as  to 
whether  the  court  was  legally  in  session,  a  few  days  subsequent  it 
was  adjourned.  It  is  a  matter  of  some  importance  in  this  case  to 
know  whether  or  not  the  court  was  in  session  on  the  6th  day  of 
August.  There  are  several  decisions  of  the  United  States  Supreme 
Court  that  hold  that  a  Federal  Court  cannot  set  aside  or  vacate  a 
judgment  entered  at  one  term  at  a  subsequent  term ;  that,  as  long 
as  a  term  lasts,  a  court  can  modify  or  vacate  a  judgment  or  decree 
entered  at  that  term,  but  as  soon  as  the  term  ends  the  power  of 
a  court  over  its  decrees  entered  during  the  continuance  thereof 
terminates.  Cameron  v.  McRoberts,  3  Wheat.  591;  McMicken  v. 
Perrin,  18  How.  507.  If,  however,  a  motion  is  made  to  vacate  a 
judgment  or  decree  at  the  same  term  at  which  it  was  rendered,  and 
the  motion  is  presented  to  the  court,  and  submitted,  and  taken 
under  advisement,  the  court  at  a  subsequent  term,  in  ruling  upon 
this  motion,  may  vacate  and  set  aside  a  judgment  or  decree.  God- 
dard  v.  Ordway,  101  TJ.  S.  745.  The  telegram  to  the  officers  of  the 
court  directing  an  adjournment  from  the  12th  to  the  19th  of  July 
may  be  considered  an  order  in  writing.  A  telegram  has  been 
classed  as  a  memorandum  in  writing,  within  the  statute  of  frauds. 
Thomp.  Electr.,  §§  476,  477.  But  a  conversation  or  order  sent  by 
telephone  cannot  be  properly  termed  a  "written"  conversation  or 
order.  The  statute  requires  that  a  written  order  should  be  di- 
rected alternatively  to  the  marshal,  and,  in  his  absence,  to  the 
clerk,  to  adjourn  the  court.  Rev.  St.  §  672.  The  court  was  not 
adjourned  by  the  written  order  of  court  on  the  19th  day  of  July. 
Did  the  term  lapse  for  this  reason?  This  is  a  question  not  free 
from  difficulty. 

The  case  of  Railway  Co.  v.  Hand,  7  Kan.  380,  is  directly  in 
point,  to  the  effect  that,  under  the  condition  of  affairs  presented 
in  this  case,  the  term  would  not  lapse.  In  that  case  a  verdict  was 
received  and  judgment  ordered  on  Saturday,  the  5th  of  December, 
The  court  adjourned  until  Monday,  the  7th.  The  judge  was  absent 
until  the  9th,  when  court  was  called.     On  the  8th  a  motion  for  a 


24  Cases  on  Federal  Procedure 

new  trial  was  filed.    It  was  held  to  have  been  filed  during  the  term. 
In  that  case  the  court  said : 

"The  term  of  court  is  fixed  by  law.  Having  once  opened,  it  so 
continues  till  the  term  expires  or  an  adjournment  sine  die  is  made." 

In  the  case  of  Labadie  v.  Dean,  47  Tex.  90,  the  court  said : 

"The  court  convened  and  was  duly  organized  at  th^  time  pre- 
scribed by  law.  When  the  court  is  organized  and  opened  for  a 
regular  term,  the  term  continues  until  it  is  ended  by  order  of  final 
adjournment,  or  until  the  efilux  of  the  time  fixed  by  law  for  its 
continuance.  *  *  *  "Yhe  orders  of  adjournment  of  its  sessions 
from  day  to  day,  or  to  a  particular  hour  of  the  day,  are  mere 
announcements  of  its  proposed  or  intended  order  of  transacting  the 
business  to  come  before  it  during  the  term.  But,  certainly,  the 
failure  of  the  court  to  meet  at  the  hour  or  on  the  day  to  which  it 
had  thus  taken  a  recess  can  in  no  way  affect  or  put  an  end  to  its 
term." 

In  the  case  of  Barrett  v.  State,  1  Wis.  156,  it  was  sought  to  set 
aside  a  verdict  in  a  case  because  it  was  received  during  an  ad- 
journment of  the  court.  The  court  adjourned  at  6:30  o'clock  p. 
m.  to  the  next  day  at  8 :30  a.  m.  Between  these  times  the  court 
received  the  verdict  of  a  jury.  It  was  held  that  the  verdict  was 
received  in  term  time.  In  the  discussion  of  the  question,  the  court 
said:  "But,  for  all  general  purposes,  the  court  is  considered  as 
in  session  from  the  commencement  till  the  close  of  the  term."  In 
this  case  it  was  shown  that  during  the  time  when  a  court  was 
adjourned,  as  it  is  called,  the  court  had  control  over  juries  and 
their  conduct ;  that  grand  juries  could  be  in  session,  and  witnesses 
could  be  examined  and  punished  for  contempt  by  the  court  for 
refusing  to  answer  proper  questions. 

From  these  cases  it  would  appear  that  these  "adjournments," 
as  they  are  called,  of  the  court  do  not  affect  the  term.  This  con- 
tinues, when  properly  commenced,  until  a  final  adjournment,  or 
perhaps,  more  properly,  until  the  court  declares  it  terminated, 
or  it  is  terniinatod  by  some  law.  In  some  states  the  length  of  a 
term  is  presci-ihod  by  law.  It  would  seem,  under  the  act  of  Con- 
gress above  referred  to,  it  was  thought  it  would  be  necessary  to 
have  the  court  adjourned  from  time  to  time,  in  order  that  the 
IfTTii  might  continuf'.^ 

aCdinp.Tri'  Sficclt  v.  iCcynoIds,  6;{  Ark.  1,  .^8  R.  W.  150  (1896);  Locsnitz 
V.  Sfclingnr,  1U7  Ind.  4i:J,  4:^7-lli8,  25  N.  E.  10;J7,  lU.tS  (1890).— Ed. 


District  Courts  25 

BALL  V.  UNITED  STATES. 
Supreme  Coiirt  of  the  United  Staies.    1891. 
140  TJ.  8.  118,  11  8.  Ct.  761,  35  L.  Ed.  377. 

On  the  4th  of  December,  1888,  the  clerk  of  the  District  Court 
of  the  United  States  for  the  Eastern  District  of  Texas,  at  Galves- 
ton, certified  to  the  circuit  judge  for  the  fifth  circuit  that  the 
district  judge  of  that  district  was  "prevented  by  reason  of  ill- 
ness from  continuing  the  holding  of  the  present  November  term 
of  the  District  and  Circuit  courts  of  the  United  States  for  the 
Eastern  District  of  Texas,  at  Galveston ;  and  also  the  coming  terms 
of  said  courts  at  Tyler,  Jefferson  and  Galveston,  in  the  year  1889. ' ' 
Thereupon  the  circuit  judge  issued  an  order  designating  and  ap- 
pointing "the  judge  of  the  Western  Judicial  District  of  Louisiana 
to  conclude  the  holding  of  the  present  November  term  of  the  Dis- 
trict and  Circuit  courts  for  the  Eastern  District  of  Texas,  at  Gal- 
veston, and  also  to  hold  the  coming  terms  of  the  District  and 
Circuit  courts  in  said  Eastern  District  of  Texas,  during  the  year 
1889,  and  during  the  disability  of  the  judge  of  said  district,  and 
to  have  and  exercise  within  said  district  during  said  period,  and 
during  such  disability,  the  powers  that  are  vested  by  law  in  the 
judge  of  said  district."  On  the  12th  of  March,  1889,  Congress 
created  a  new  division  of  the  Eastern  Judicial  District  of  Texas, 
the  courts  to  be  held  at  Paris,  Texas,  and  with  ' '  exclusive  original 
jurisdiction  of  offences"  committed  within  a  designated  portion  of 
Indian  Territory  attached  to  that  district,  and  directed  two  terms 
to  be  held,  one  in  April,  and  one  in  October.  25  Stat.,  p.  786,  c. 
333,  §  18.  Under  the  authority  so  given  the  judge  of  the  Western 
District  of  Louisiana  held  the  Circuit  Court  at  Paris  in  October, 
1889,  during  which  term  persons  were  tried  and  convicted  of  the 
offence  of  murder,  committed  in  that  part  of  the  Indian  Territory ; 
and  on  the  following  April  term  they  were  sentenced  to  death. 
Before  that  term  commenced,  the  regular  district  judge  of  that 
district  died.^ 

Mr.  Chief  Justice  Fuller,  after  stating  the  case,  delivered  the 
opinion  of  the  court. 

We  are  of  opinion  that  the  irregularities  alleged  did  not  place 
Judge  Boarman,  in  holding  the  October  term,  in  any  other  posi- 

1  The  facts  are  stated  as  found  in  the  syllabus  of  the  opinion  printed  in 
the  oflBcial  report,  and  only  a  portion  of  the  opinion  is  reprinted. — Ed. 


26  Cases  on  Federal  Procedure 

tion  than  that  of  a  judge  de  jure,  and  that  as  to  the  April  term,  he 
was  judge  de  facto  if  not  de  jure,  and  his  acts  as  such  are  not 
open  to  collateral  attack.  Norton  v.  Shelby  County,  118  U.  S. 
425 ;  In  re  Manning,  139  U.  S.  504 ;  Clark  v.  Commonwealth,  29 
Penn.  St.  129;  Fowler  v.  Beebe,  9  Mass.  231;  Commonwealth  v. 
Taber,  123  Mass.  253 ;  State  v.  Carroll,  38  Connecticut,  449 ;  Keith 
V.   State,  49   Arkansas  439;   People  v.   Bangs,  24  Illinois   184.2 


NATIONAL  HOME  FOR  DISABLED  VOLUNTEER 
SOLDIERS  V.  BUTLER. 

Circ^^it  Court,  D.  Massachusetts.    1888. 

33  Fed.  374. 

Colt,  J. — The  claim  that  the  judge  who  presided  at  the  trial 
was  not  duly  appointed  for  that  purpose  is  based  upon  sections 
591  and  596  of  the  Revised  Statutes,  which,  so  far  as  they  relate 
to  this  question,  are  as  follows : 

"Sec.  591.  Where  any  district  judge  is  prevented,  by  any 
disability,  from  holding  any  stated  or  appointed  term  of  his  dis- 
trict court,  or  of  the  circuit  court  in  his  district  in  the  absence  of 
the  other  judges  and  that  fact  is  made  to  appear  by  the  certificate 
of  the  clerk,  under  the  seal  of  the  court,  to  the  circuit  judge,  or, 
in  his  absence,  to  the  circuit  justice  of  the  circuit  in  which  the 
district  lies,  such  circuit  judge  or  justice  may,  if  in  his  judgment 
the  public  interests  so  require,  designate  and  appoint  the  judge 
of  any  other  district  in  the  same  circuit  to  hold  said  courts,  and 
to  discharge  all  the  judicial  duties  of  the  judge  so  disabled,  during 
such  disability.  Such  appointment  shall  be  filed  in  the  clerk's  ofSce, 
and  entered  on  the  minutes  of  the  said  District  Court,  and  a  certi- 
fied copy  thereof,  under  the  seal  of  the  court,  shall  be  transmitted 
by  the  district  clerk  to  the  judge  so  designated  and  appointed." 

"Sec.  596.  It  shall  be  the  duty  of  every  circuit  judge,  when- 
ever in  his  judgment  the  public  interest  so  requires,  to  designate 
and  appoint,  in  the  manner  and  with  the  powers  provided  in  sec- 
tion five  liundred  and  ninety-one,  the  district  judge  of  any  judicial 

*  For  tlio  dffinition  of  a  do  facto  officer,  see  U.  S.  v.  Alexander,  46  Fed. 
728,  729  7;)0  (1891).  But  see  Norton  v.  Shelby  County,  118  U.  S.  425,  441, 
6  S.  Ct.  1121,  1125,  30  L.  Ed.  178,  186  (1896).— Ed. 


District  Courts  27 

district  within  his  circuit  to  hold  a  district  or  circuit  court  in 
the  place  or  in  aid  of  any  other  district  judge  within  the  same 
circuit.     *     *     *     '» 

The  facts  are  that  in  pursuance  of  section  596  the  circuit  judge 
designated  and  appointed  Judge  Carpenter  to  hold  the  term  of 
the  Circuit  Court  in  aid  of  the  district  judge  for  this  district  by 
an  instrument  in  writing,  duly  signed,  which  instrument  was  filed 
in  the  office  of  the  clerk  of  the  Circuit  Court.  The  defendant 
claims  that  the  instrument  of  appointment  should  have  been  filed 
in  the  office  of  the  clerk  of  the  District  Court,  and  that  the  failure 
so  to  file  it  makes  the  appointment  invalid  and  of  no  effect,  so 

that  the  judge  had  no  authority  to  preside  in  the  Circuit  Court. 

»     #     * 

The  provision  is  directory  only.  The  language  is  that  the  "ap- 
pointment" shall  be  filed,  and  this  language  alone,  if  there  were  no 
other  considerations  on  either  side,  might  be  held  sufficient  to  imply 
that  the  appointment  is  complete  before  it  is  filed.  But  the  sub- 
stantial ground  of  my  conclusion  is  that  the  filing  of  the  paper  is 
not  of  the  essence  of  the  act  to  be  done,  but  relates  solely  to  the 
manner  of  procedure.  The  essence  of  the  act  is  the  determination 
and  decision  on  the  part  of  the  circuit  judge — First,  that  the  public 
interest  requires  that  a  judge  be  designated;  and,  secondly,  that 
a  particular  judge  is  selected  for  that  purpose.  The  act  of  put- 
ting this  on  paper  and  signing  it,  if  signature  be  necessary,  is 
perhaps  the  last  and  essential  element  of  that  determination.  The 
filing  of  the  notice  seems  to  have  no  office  except  to  notify  the 
clerk  and  the  judge  that  the  determination  has  been  made. 

Against  this  view  of  the  scope  and  intent  of  the  statute  nothing 
can  be  found  in  the  words  of  the  statute  itself.  There  is  no  pro- 
hibition against  procedure  otherwise  than  is  directed.  The  pro- 
vision that  the  circuit  judge  may  "designate  and  appoint"  is 
complete  in  itself,  and  the  provision  as  to  filing  the  appointment 
is  afterwards  added  in  separate  sentences.  There  is  nothing  in 
the  words  or  in  their  collocation  which  obstructs  the  separation 
of  those  provisions  which  appear  to  me  non-essential  and  directory 
from  which  are  essential  and  mandatory.  If  it  were  held  that  the 
filing  in  the  clerk's  office  is  essential  it  would  seem  that  there 
would  be  no  escape  from  the  conclusion  that  the  sending  of  a  copy 
to  the  designated  judge  is  also  essential.  Such  a  conclusion  would, 
as  it  seems  to  me,  be  absurd.  For  example,  there  might  be  a  case 
in  which  the  circuit  judge  had  made  his  determination  and  ap- 
pointment, had  reduced  his  appointment  to  writing,  and  delivered 


28  Cases  on  Federal  Procedure 

it  to  the  judge  therein  appointed,  and  that  judge  had  himself  de- 
livered the  paper  to  the  clerk  of  the  District  Court,  and  the  clerk 
had  filed  and  entered  the  same,  and  yet  the  authority  of  the  judge 
would  be  incomplete  because  the  clerk  had  not  handed  him  in  re- 
turn a  certified  copy  of  the  paper  of  appointment.  This  copy,  it 
is  observed,  could  serve  no  purpose  except  to  notify  him  of  that 
which  he  already  knew,  since  there  is  no  provision  that  he  shall 
preserve  it  by  way  of  evidence  of  the  facts.  I  cannot  think  it  safe 
to  follow  an  argument  which  leads  to  such  conclusions. 
The  motion  in  arrest  of  judgment  is  overruled.^ 


Note. — Under  section  eighteen  (18)  of  the  Judicial  Code  of  the 
United  States  the  senior  circuit  judge  was  allowed  to  appoint  him- 
self. Pennsylvania  Steel  Co.  v.  New  York  City  Ry.  Co.,  221  Fed. 
Rep.  440,  442-443  (1915). 


COLTRANE  v.  TEMPLETON. 

Circuit  Court  of  Appeals,  Fourth  Circuit.    1901. 

106  Fed.  370,  45  C.  C.  A.  328. 

SiMoxTON,  Circuit  Judge. — The  sixth  assignment  of  error  goes 
to  the  disqualification  of  the  judge  because  of  the  pendency  in  the 
State  court  of  a  suit  by  him  against  the  defendant  corporation, 
and  because  one  of  the  parties  in  the  Templeton  petition  ^  was 
his  son-in-law.  There  can  be  no  doubt  that  no  one  should  sit  in 
a  cause  in  which  he,  or  those  with  whom  he  is  connected,  have  an 
interest.  It  is  unnecessary  to  cite  authority  for  this,  as  it  is  a 
principle  embedded  in  our  jurisprudence.  In  the  present  case 
the  learned  judge  who  was  presiding  felt  the  full  force  of  this 
doctrine,  and  gave  it  weight.  He  is  said  to  be  disqualified  because 
of  the  suit  ponding  in  the  State  court  against  the  corporation, 
brought  by  liim  as  ])laintilT.  Did  this  dis(iualify  him  from  mak- 
ing adinitiistrativc  orders  in  tlie  case?  He  recognized  the  narrow 
line  (»f  (Icinarkalion  l)ol\ve('n  these  foi-mal  and  preliminary  orders 

1  Only  u  portion  of  tlm  ojiinion  i.s  reprinted. — Ed. 

2Tcmploton  fihd  a  jii-tifion  ,'n  crcclitor  .■i^j.iiiist  tlio  defendant  rorporntion 
which  had  lioroinc  inaolvent  and  for  \vlii<i)  a  receiver  had  been  appointed. — Ed. 


District  Courts  29 

that  do  not  aft'ect  the  decision  of  any  question  going  to  the  merits 
of  the  controversy,  and  those  in  the  decision  of  which  he  had  a 
personal  interest.  Section  601,  Eev.  St.,  dealing  with  the  dis- 
qualification of  a  judge  sitting  in  the  District  Court,  requires  the 
removal  of  a  cause  when  the  circumstances  **  render  it  improper 
in  his  opinion  for  him  to  sit  on  the  trial."  So  he  naturally  felt 
that  it  was  for  him  to  decide.  The  bill  was  filed  in  his  court  under 
his  order ;  the  receiver  was  recognized  and  appointed  by  him, — 
both  on  the  motion  of  the  counsel  now  objecting.  The  petition  in 
question  was  before  him  three  several  days,  the  same  counsel  ap- 
pearing, and  on  the  last  day  was  fully  argued.  He  took  the  case 
under  advisement  until  the  next  day.  When  he  was  about  to 
announce  his  opinion,  for  the  first  time  the  objection  was  made 
that  he  was  disqualified.  He  could  well  believe  that  the  counsel 
themselves  had  seen  that  it  was  at  least  doubtful ;  that  it  was  a 
point  on  which  persons  could  differ.  Indeed,  he  could  well  believe 
that  the  objection,  if  it  had  force,  had  been  waived.  In  Moses 
V.  Julian,  45  N.  H.  52,  quoted  by  appellee,  it  is  said: 

"If  the  facts  are  known  to  the  party  recusing,  he  is  bound  to 
make  his  objection  before  issue  joined  and  before  the  trial  is  com- 
menced; otherwise,  he  will  be  deemed  to  have  waived  the  objec- 
tion, in  cases  when  a  statute  does  not  make  the  proceedings  void. 
After  a  trial  has  commenced,  no  attempt  to  recuse  a  judge  will 
be  listened  to  unless  it  is  shown  affirmatively  that  the  party  was 
not  aware  of  the  objection,  and  was  in  no  fault  in  not  knowing  it." 

To  the  same  effect  are  Crosby  v.  Blanchard,  7  Allen  385,  and 
Railroad  Co.  v.  Taylor,  93  Va.  226,  24  S.  E.  1013. 

Under  these  circumstances,  the  judge  had  taken  the  matter  into 
consideration,  and,  having  reached  his  own  conclusion,  adhered 
to  it.  If  we  are  governed  by  the  analogy  of  section  601,  Rev.  St., 
it  is  a  matter  within  his  discretion  and  not  the  subject  of  error. 
Cheang  Kee  v.  U.  S.,  3  Wall.  320,  18  L.  Ed.  72;  Earnshaw  v. 
U.  S.,  146  U.  S.  60,  13  Sup.  Ct.  14,  36  L.  Ed.  887.  Freem.  Judgm., 
§  145,  declares  the  law  which  seems  to  control  this  question : 

' '  While  it  is  well  settled  by  the  common  law  that  no  judge  ought 
to  act  where,  from  interest  or  from  any  other  cause,  he  is  sup- 
posed to  be  partial  to  one  of  the  suitors,  yet  his  action  in  such  a 
ease  is  regarded  as  an  error  or  irregularity  not  affecting  his  juris- 
diction, and  to  be  corrected  by  a  vacation  or  reversal  of  his  judg- 
ment, except  in  the  case  of  those  inferior  tribunals  from  which  no 
appeal  or  writ  of  error  lies.  If  the  facts  are  known  to  the  party 
recusing,  he  is  bound  to  make  his  objection  before  issue  joined,  and 


30  Cases  on  Federal  Procedure 

before  the  trial  is  commenced ;  otherwise,  he  will  be  deemed  to 
have  waived  the  objection,  in  cases  where  a  statute  does  not  make 
the  proceedings  void. ' '  * 


EPSTEIN  V.  UNITED  STATES. 

Circuit  Court  of  Appeals,  Seventh  Circuit.    1912. 

196  Fed.  354,  116  C.  C.  A.  174. 

Baker,  Circuit  Judge. — Plaintiff  in  error  was  convicted  of 
suborning  a  witness  at  a  hearing  in  a  bankruptcy  proceeding  to 
commit  perjury. 

A  most  flagrant  case  on  the  part  of  a  member  of  the  bar  in 
corrupting  a  witness  was  completely  presented  in  the  indictment, 
amply  sustained  by  the  evidence,  and  fully  and  fairly  submitted 
to  the  jury  by  the  charge  of  the  judge.  Assignments  of  error 
with  respect  to  indictment,  variance,  and  charge  need  no  specific 
attention.  Two  questions  remain  that  require  statement  and  an- 
swer. 

(1)  I.  Section  601  of  the  United  States  Revised  Statutes  (U. 
S.  Comp.  St.  1901,  p.  484)  provides  that  if  "the  judge  of  any 
District  Court  is  in  any  way  concerned  in  interest  in  any  suit 
pending  therein,  or  has  been  of  counsel  for  either  party,  *  *  * 
it  shall  be  his  duty,  on  application  by  either  party,  to  cause  the 
fact  to  be  entered  on  the  records  of  the  court,"  and  to  certify  the 
case  to  another  court. 

Plaintiff  in  error  filed  an  affidavit  in  w'hich  he  alleged  that  the 

2  Only  a  portion  of  the  opinion  is  roprintcrl. 

In  the  following  cases  it  was  held  that  there  had  been  a  waiver  of  the  right 
to  obicct  that  the  judge  was  disqualified:  Pace  v.  Reed,  138  Ky.  605,  614-615, 
128  S.  W.  891,  894  (1910)  demurrer  to  petition  passed  upon  without  objec- 
tion; DuQuoin  Waterworks  Co.  v.  Parks,  207  111.  46,  49,  69  N.  E.  587,  588 
C190.'{)  went  to  trial  after  obtaining  change  of  venue,  making  no  objection; 
Bnena  Vi.sta  Loan  &  Savings  Bank  v.  Orier,  114  Ga.  398,  ;?99,  40  S.  E.  284, 
284  C1901)  consented  in  term  to  order  empowering  presiding  judge  to  try 
<',iHc  in  vacation. 

Hut  see  First  Nat.  Bank  v.  McGuire,  12  S.  D.  226,  23.1-2.^4,  80  N.  W.  1074, 
1076,  47  L.  R.  A.  413,  415-416,  76  Am.  St.  Rep.  598,  602-603  (1899);  Chase 
V.  Weston,  75  Oa.  159,  39  N.  W.  246  (1888);  January  v.  State,  36  Tex,  Cr. 
R.  488,  491,  38  S.  W.  179,  179   (1896). 

Compare  Stone  v.  Marion  County,  78  la.  14,  15-17,  42  N.  W.  570,  571 
(1889);  Ingraham  v.  State,  82  Neb.  553,  556-557,  118  N.  W.  320,  321  (1908). 
—Ed. 


District  Courts  31 

judge  was  conducting  a  hearing  in  a  bankruptcy  case  for  the  pur- 
pose of  discovering  assets;  that  at  the  conclusion  of  the  hearing 
the  judge  appeared  to  be  angi-y  and  said  in  the  presence  and  hear- 
ing of  affiant,  "This  is  a  nasty  piece  of  business;  this  estate  has 
been  looted  by  someone;"  that  the  judge  then  turned  to  a  gentle- 
man standing  at  the  bar  and  said,  "Use  what  is  left  of  this  estate, 
even  to  the  last  penny,  to  investigate  this  matter,  and  if  any  one, 
whoever  he  may  be,  has  committed  any  act  that  can  be  reached 
and  punished  under  the  law,  institute  proceedings  against  him." 

On  this  it  is  asserted  that  the  judge  was  "concerned  in  inter- 
est" in  the  case,  and  became  "of  counsel"  for  the  prosecution. 
Official  duties  of  the  trial  judge  include  his  instructions  to  grand 
juries  to  investigate  alleged  violations  of  law,  which  may  be  brought 
to  their  attention  by  the  district  attorney  or  otherwise,  and  of 
whose  actual  existence  the  judge  personally  knows  nothing.  If 
in  the  course  of  official  business  in  court  the  judge  sees  that  an 
offense  against  the  Penal  Code  has  been  or  is  being  committed, 
does  his  official  duty  require  him  to  ignore  the  matter?  No,  we 
say.  For  him  to  fail  to  direct  an  investigation  to  be  made  would 
be  not  merely  an  abandonment  of  his  post  as  a  minister  of  the  law, 
but  as  well  an  implied  approval  or  condonation  of  the  offense. 
To  direct  a  prosecuting  officer  (and  presumably  the  "gentleman 
standing  at  the  bar ' '  was  an  officer  who  pursued  the  inquiry  which 
resulted  in  the  indictment)  to  inquire  into  a  matter  occurring  in 
court,  certainly  no  more  than  charging  a  grand  jury,  makes  the 
judge  concerned  in  interest"  or  "of  counsel"  for  the  prosecution 
within  the  meaning  of  section  601.  The  Richmond  (C.  C.)  9  Fed. 
863.1 

1  In  the  following  cases  it  was  held  that  the  judge  had  not  been  of  coun- 
sel: Lee  V.  Heuman,  10  Tex.  Civ.  App.  666,  667',  32  S.  W.  93,  93-94:  (1895), 
mere  casual  expressions  of  opinion  as  to  merits  of  case,  not  being  engaged 
in  case;  Ft.  Worth  &  D.  C.  Ey.  Co.  v.  Mackney,  83  Tex.  410,  420-421,  18 
S.  W.  949,  953  (1892),  name  of  judge  appearing  by  mistake  on  one  of  papers 
as  counsel. 

As  to  disqualification  on  the  ground  of  relationship,  see  Bryant  v.  Liver- 
more,  20  Minn.  313,  344  (1874)  ;  Fowler  v.  Byers,  16  Ark.  196,  197   (1855). 

As  to  when  a  judge  is  a  material  witness,  see  Marry  v.  James,  2  Dalv 
(N.  Y.)   437   (1869). 

As  to  the  nature  of  the  interest  in  an  action  which  a  judge  must  have  in 
it  to  disqualify  him  from  sitting  as  judge,  see  Ex  parte  Harris,  26  Fla.  77, 
82-83,  7  So.  1,  2,  23  Am.  St.  Rep.  548,  549-550,  6  L.  E.  A.  713,  713-714  (1890)  ; 
Ferguson  v.  Brown,  75  Miss.  214,  227,  21  So.  603,  606   (1897). 

As  to  the  effect  upon  proceedings  of  acts  of  a  judge  who  is  disqualified 
on  the  ground  of  interest,  see  Findley  v.  Smith,  42  W.  Va.  299,  305,  26 
S.  E.  370,  372  (1896)  ;  State  v.  Young,  31  Fla.  594,  601,  12  So.  673,  675,  34 
Am.  St.  Rep.  41,  44-45   (1893). 


32  Cases  on  Federal  Procedure 

DUNCAN  V.  ATLANTIC  COAST  LINE  R.  CO. 

District  Court,  8.  D.  Georgia.     1915. 

223  Fed.  446. 

Lamdin,  District  Judge.  The  question  here  presented  is  whether 
the  presiding  judge  is  disqualified  from  hearing  the  above-stated 
case  on  account  of  the  fact  that  before  his  appointment  as  district 
judge  the  law  firm  of  which  he  was  then  a  member  was  local 
counsel  for  defendant  railroad  company  in  "Ware  county,  Ga. ; 
the  emploj'ment  of  said  firm  being  restricted  to  the  counties  of 
Ware  and  Charlton.  He  had  no  connection  with  the  ease  at  bar, 
which  was  originally  brought  in  the  City  Court  of  Savannah  and 
removed  to  this  court,  and  knew  nothing  of  said  case  until  he 
reached  it  on  the  docket. 

(1)  At  common  law  there  existed  no  ground  for  the  disqualifi- 
cation of  a  judge.  Blackstone  in  his  Commentaries  stated  that 
the  law  of  England  in  his  time  was  as  follows: 

"By  the  laws  of  England  also,  in  the  times  of  Bracton  and  Fleta, 
a  judge  might  be  refused,  but  now  the  law  is  otherwise,  and  it 
is  held  that  judges  and  justices  cannot  be  challenged.  For  the  law 
will  not  suppose  a  possibility  of  bias  or  favor  in  a  judge  who  is 
already  sworn  to  administer  impartial  justice  and  whose  authority 
greatly  depends  upon  that  presumption  and  idea."  3  Bl.  Com, 
361 ;  Co.  Litt.  294 ;  23  Cyc.  575. 

It  is  by  statute  that  a  judge  is  declared  to  be  disqualified  in 
particular  instances,  and,  as  a  general  rule,  the  statutory  grounds 

In  the  following  cases  it  was  held  that  the  judge  had  an  interest  in  the 
action:  Thornton,  Adm 'r  v.  Moore,  61  Ala.  .'{47,  :154  (1878),  creditor  of 
estate  being  probated;  (iay  v.  Minot,  57  Mass.  (.'5  Cush.)  :{52  (1849),  debtor 
of  estate  being  probated;  Ex  parte  Cornwell,  144  Ala.  497,  :i9  So.  ;554  (UX).")), 
depositor  in  bank  one  of  whose  officers  was  being  prosecuted  for  einl)ezzle- 
tnent  of  the  bank's  money;  (."ollingsfin-th  County  v.  Myers,  .Sr)  S.  W.  414, 
41')  (1890),  interested  to  extent  of  costs;  Tenipleton  v.  iJidtlijigs,  12  S.  W. 
S.jI    (1889j,  nifinbt-r  of  firm  holding  note  as  security. 

In  the  following  cases  it  was  held  that  the  judge  did  not  have  an  interest 
in  the  action,  liowman's  Case,  67  Mo.  146,  IGO-lijl  (1877),  honorary  mem- 
ber of  bar  association,  the  disbarment  of  one  of  who.se  members  was  in  issue; 
riark  v.  State,  Zi  Tex.  App.  260,  262,  .1  S.  W.  11.'),  116  (1887),  title  to 
('Foperty  involved  was  held  by  judge  in  his  official  capacity;  Scadden  Flat 
<;old-Min,  Co.  v.  Scadden,  121  Vnl  :!:{,  :i6-:i7,  .1M  Pac.  440,  441  (1898).  judge 
formerly  owned  stock  in  i)laiiitifT  coinpany,  but  did  not  when  action  was 
brought;  City  of  Oakland  v.  Oakland  Water-Front  Co.,  118  Oal.  249,  .lO  Pac. 
26S  fl897),  judge  was  residiMit  and  taxpayer  of  n  city  suing  for  a  valuable 
piece  of  land. —  Kd. 


District  Courts  33 

of  disqualification  are  exclusive.  Elliott  v,  Hipp,  134  Ga.  844, 
848,  68  S.  E.  736,  137  Am.  St.  Rep.  272,  20  Ann.  Cas.  423 ;  Luke 
V.  Batts,  11  Ga.  App.  783  (3),  76  S.  E.  165;  17  Am.  &  Eng.  Enc. 
Law,  pp.  738,  740.  In  order  to  decide  the  question  under  con- 
sideration, it  is  therefore  necessary  to  consider  the  statute  of  the 
United  States  governing  such  matters.  This  is  to  be  found  in 
section  20  of  the  Judicial  Code  of  the  United  States  which  is  as 
follows : 

"Whenever  it  appears  that  the  judge  of  any  District  Court  is 
any  way  concerned  in  interest  in  any  suit  pending  therein,  or  has 
been  of  counsel  or  is  a  material  witness  for  either  party,  or  is 
so  related  to  or  connected  with  either  party  as  to  render  it  im- 
proper, in  his  opinion,  for  him  to  sit  on  the  trial,  it  shall  be  his 
duty,  on  application  by  either  party,  to  cause  the  fact  to  be  entered 
on  the  records  of  the  court ;  and  also  an  order  than  an  authenticat- 
ed copy  thereof  shall  be  forthwith  certified  to  the  senior  circuit 
judge  for  said  circuit  then  present  in.  the  circuit,  and  thereupon 
such  proceedings  shall  be  had  as  are  provided  in  section  fourteen. ' ' 

The  presiding  judge  in  this  case  is  not  "concerned  in  interest" 
in  the  pending  suit,  nor  is  he  "a  material  witness"  therein,  nor 
is  he  "related  to  or  connected  with  either  party"  at  the  present 
time,  so  as  to  render  it  improper  for  him  to  sit  at  the  trial  of  the 
case. 

But  this  section  also  prohibits  a  judge  from  presiding  who  "has 
been  of  counsel."  The  question  involved  here,  therefore,  is  wheth- 
er the  expression  last  quoted  means  that  a  judge  is  disqualified 
who  "has  been  of  counsel"  at  any  time  for  a  party  to  the  cause, 
or  whether  he  is  disqualified  only  when  he  "has  been  of  counsel" 
in  the  case  to  be  tried.  The  use  of  the  expression  in  question  in 
connection  with  the  context  shows  conclusively  that  the  words 
"has  been  of  counsel"  are  restricted  to  the  suit  under  considera- 
tion.   The  language  of  the  section  is  that; 

"Whenever  it  appears  that  the  judge  of  any  District  Court  is 
any  way  concerned  in  interest  in  any  suit  pending  therein  or  has 
been  of  counsel,  or  is  a  material  witness  for  either  party,"  etc. 

It  is  evident  that  the  words  "in  any  suit  pending  therein"  are 
to  be  understood,  at  the  end  of  the  above  excerpt  from  the  section. 
As  stated  by  the  district  judge  in  the  case  of  the  Richmond  (C. 
C.)  9  Fed.  863. 

' '  The  decisions,  so  far  as  I  have  been  able  to  find,  are  unanimous 
Wheaton  C.  F.  P.— 3 


34  Cases  on  Federal  Procedure 

that  'of  counsel'  means  'of  counsel  for  a  party  in  that  cause  and 
in  that  controversy,'  and  if  either  the  cause  or  controversy  is  not 
identical  the  disqualification  does  not  exist." 

In  the  absence  of  statute,  judges  are  not  disqualified,  even  by 
reason  of  having  been  counsel  in  a  cause.  23  Cyc.  586 ;  Lloyd  v. 
Smith,  T.  U.  P.  Charlt.  (Ga.)  143. 

The  Code  of  Georgia  of  1910,  §  4642,  which  covers  substantially 
the  same  grounds  of  disqualification  as  the  federal  statute,  clears 
up  the  question,  by  stating  specifically  that  the  judge  must  have 
been  of  counsel  in  the  pending  case  to  be  disqualified;  the  lan- 
guage of  the  section  being  as  follows : 

"No  judge  or  justice  of  any  court  *  *  *  can  sit  in  any 
cause  or  proceeding  in  which  he  is  pecuniarily  interested,  or  re- 
lated to  either  party  within  the  fourth  degree  of  consanguinity  or 
affinity,  nor  in  which  he  has  been  of  counsel,  nor  in  which  he  has 
presided  in  anj'-  inferior  judicature  when  his  ruling  or  decision  is 
the  subject  of  review,  without  the  consent  of  all  the  parties  in 
interest :  Provided,  that  in  all  cases  in  which  the  presiding  judge 
of  the  Superior  Court  may  have  been  employed  as  counsel  before 
his  appointment  as  judge,  he  shall  preside  in  such  cases  if  the 
opposite  party  or  counsel  agree  in  writing  that  he  may  preside, 
unless  the  judge  declines  to  do  so." 

The  Supreme  Court  of  Georgia  has  decided  the  question  here 
presented  squarely  in  the  following  language: 

* '  The  fact  that  a  judge  of  the  Superior  Court  had  formerly  been 
a  director  of  a  railroad  company,  and  was  so  at  the  time  that  an 
attorney  rendered  professional  services  to  the  company,  did  not 
disqualify  him  from  presiding  at  the  trial  of  a  suit  for  such  serv- 
ices, if  at  that  time  he  had  ceased  to  be  a  director,  owned  no  stock, 
and  was  not  otherwise  interested.  It  is  present,  not  past,  interest 
which  disqualifies  a  judge."  Johnson,  Executrix,  v.  Marietta  & 
North  Georgia  Railroad,  70  Ga.  712  (1). 

The  Supreme  Court  of  the  United  States  in  tlie  case  of  Carr  v. 
Fife,  156  U.  S.  494,  15  Sup.  Ct.  427,  39  L.  Ed.  508,  also  held  as 
follows: 

"The  fact  tliat  a  circuit  judge,  })i'i()r  to  liis  aitpointnient,  had 
been  counsel  for  one  of  the  parties  in  matters  not  connected  with 
the  case  on  trial,  docs  not  dis(iualif3^  liim  from  trying  the  cause." 

See,  also,  the  case  of  Conycrs  v.  Ford,  Receiver,  111  Ga.  754, 
36  S.  E.  974;  In  re  Nevitt,  117  Fed.  448,  451,  54  C.  C.  A.  622; 
23  Cyc.  585;  The  Kich.noiid  (C.  C.)  9  Fed.  863;  and  Ex  parte 
N.  K.  Fairbank  (I).  C.),  194  Fed.  978,  987. 


District  Courts  35 

(2)  The  presiding  judge  in  this  case  does  not  come  within  the 
letter  or  the  spirit  of  the  prohibition  of  the  statute.  He  is  not 
connected  with  either  party;  he  has  never  heard  of  the  case 
before,  and  knows  nothing  about  the  facts  or  issues  involved ; 
and  he  feels  that  his  mind  is  absolutely  impartial  between  the 
parties  to  the  cause,  and  that  it  is  therefore  neither  illegal  nor 
improper  for  him  to  preside  at  the  trial  of  the  case.  He  holds, 
therefore,  that  he  is  not  disqualified.^ 


EX  PARTE  N.  K.  FAIRBANK  CO. 

District  Court,  M.  D.  Alabama.     1912. 

194  Fed.  978. 

Jones,  District  Judge.  On  the  12th  of  February,  1912,  Mr. 
J.  F,  Merryman,  who  describes  himself  in  the  papers  as  "the  attor- 
ney of  the  N.  K.  Fairbank  Company"  and  *'a  resident  member  of 
the  bar  of  the  city  of  St.  Louis  of  the  State  of  Missouri,"  mailed 
from  that  city  to  the  clerk  of  the  court  here  an  application  and 
affidavits,  praying  that  the  presiding  judge  proceed  no  further  in 
the  case  of  the  Jackson  Lumber  Company  v.  N.  K.  Fairbank  Com- 
pany, and  certify  the  matter  to  the  senior  circuit  judge  of  this 
circuit  pursuant  to  the  provisions  of  the  Judicial  Code,  The  pa- 
pers, as  the  correspondence  between  Mr.  Merryman  and  the  clerk 
shows,  were  not  presented  to  the  presiding  judge  until  February 
20,  1912,  on  account  of  a  death  in  his  family,  but  were  marked 
"Filed"  by  the  clerk  on  the  14th  of  February,  1912,  the  date  of 
their  receipt;  the  judge  having  no  knowledge  or  information  of 
their  existence  until  their  presentation  to  him  on  February  20,  1912. 

Messrs.  Ball  &  Samford,  the  counsel  of  record  of  the  Fairbank 
Company  in  this  court,  each  advise  the  judge  that  they  had  and 
are  taking  no  part  in  this  application,  and  so  far  as  they  are 
concerned  they  are  willing  to  try  the  case  before  the  presiding 
judge. 

(1)   The  matter  thus  presented  has  been  duly  considered,  and 

1  Compare  Tampa  St.  Ey.  «&  Power  Co.  v.  Tampa  Suburban  R.  Co.,  30  Fla. 
595,  11  So.  562  (1892)  ;  Terry  v.  State,  24  S.  W.  510  (1893)  ;  State  v.  Hocker, 
34  Fla.  25,  29-32,  15  So.  581,  583  (1894). 

See  also  Mclndoo  v.  State,  66  Tex.  Cr.  App.  307,  308,  147  S.  W.  235,  236 
(1912);  Wilks  v.  State,  27  Tex.  App.  381,  11  S.  W.  415  (1889);  Qeghorn  v. 
Cleghorn,  66  Cal.  309,  5  Pac.  516  (1885).— Ed. 


36  Cases  on  Federal  Procedure 

I  now  give  my  conclusions,  reserving  for  another  time  the  filing 
of  a  more  extended  opinion.  Assuming  without  deciding  the  con- 
stitutionality of  the  statute,  the  application  and  aflEidavits  are  fatal- 
ly defective,  whether  construed  separately  or  in  connection  with 
the  application  to  which  they  refer,  because  they  do  not  charge  as  a 
matter  of  fact  that  the  judge  "has  a  personal  bias  or  prejudice 
against  the  defendant  or  in  favor  of  the  plaintiff"  They  affirm 
in  legal  effect  only  that  affiants  are  "informed  and  believe"  such 
is  the  fact.  Pollard,  Assignee,  et  al.  v.  Southern  Fertilizer  Com- 
pany, 122  Ala.  410,  25  South  169 ;  Schilcer  v.  Brock  &  Spight,  124 
Ala.  626,  27  South.  473. 

(2)  Second.  Thej-  are  not  accompanied  by  any  statement,  as 
the  Judicial  Code  explicitly  requires,  "of  the  facts  and  the  rea- 
sons for  the  belief,"  save  in  one  immaterial  instance,  the  cor- 
respondence, which  on  its  face,  both  as  matter  of  law  and  morals, 
disproves  the  existence  of  either  bias  or  prejudice  between  the 
parties. 

(3)  Third.  The  certificate  of  good  faith  is  not  made  bj'  any 
"counsel  of  record"  of  this  court.  The  gentleman  who  makes  the 
certificate  has  never  been  admitted  as  an  attorney  of  this  court. 
He  has  never  signed  the  roll  of  its  attorneys,  or  taken  the  oath  as 
required  by  its  rules,  and  has  never  been  recognized  by  the  court 
as  a  counsellor  thereof  in  any  proceeding  had  in  this  or  any  other 
cause  in  this  court.    Ex  parte  Secombe,  19  How.  9,  15  L.  Ed.  565. 

(4)  Fourth.  If  the  Judicial  Code  applies  to  a  case  pending  at 
the  time  it  went  into  effect,  which  it  does  not  (Henry  v.  Harris 
pt  al.  (C.  C.)  191  Fed.  858),  the  petitioner  has  failed  to  bring  itself 
within  its  provisions,  because  it  did  not  present  the  application 
within  10  days  after  the  Code  went  into  effect  on  January  1,  1912 
but  delaj-ed  attempting  to  file  the  affidavits  until  February  12,  1912, 
during  which  period  the  court  was  always  open  in  the  term  at 
which  the  case  stood  for  trial,  and  the  affidavits  and  application 
offer  no  excuse  for  the  failure  to  act  within  the  time  prescribed  by 
the  statute.     State  v.  Donlan,  32  Mont.  256,  80  Pac.  244. 

(5)  Fifth.  The  correspondence  between  the  presiding  judge 
and  Judge  Shelby,  made  an  exhibit  to  the  petition,  shows  on  its 
face  as  a  matter  of  law  that  the  presiding  judge  has  no  prejudice 
against  the  defendant  or  bias  for  the  plaintiff.  It  does  not  even 
show  prejudice  against  the  petitioner's  attorney  who  wrote  the 
application  wliich  called  forth  the  letter  to  Judge  Shelby.  Conn, 
v.  Chadwick,  17  Fla.  429;  City  of  Emporia  v.  Volmer,  12  Kan. 
(127;  State  v.  Tngalls,  17  Towa  8;  People  v.  Williams,  24  Cal.  31; 
State  v.  Tiohan,   19   K;iii.  54;  Turner  v.  Commonwealth,  2  Mete. 


District  Courts  37 

(Ky.)  629;  People  v.  Findley,  132  Cal.  304,  64  Pac.  472;  Higgins 
V.  San  Diego,  126  Cal.  303,  58  Pac.  700,  59  Pac.  209;  Smith  v. 
Commonwealth,  108  Ky.  56,  55  S.  W.  718. 

The  applications  and  affidavits  make  no  ease  under  the  statute 
and  disclose  nothing  which  could  excuse,  much  less  justify,  the 
presiding  judge  in  abdicating  his  duty  under  the  Constitution  and 
laws.  The  affidavits  and  application  were  marked  "Filed"  by  the 
clerk  without  the  knowledge  or  order  of  the  presiding  judge.  Not 
conforming  to  the  statute,  but  being  defective  in  the  particulars 
stated,  they  were  not  entitled  to  be  filed  under  the  plain  terms  of 
the  Judicial  Code,  and  could  be  only  presented  to  the  judge. 
Wolf  V.  Marmet,  72  Ohio  St.  578,  583,  74  N.  E.  1076. 

It  is  exceedingly  desirable  that  the  action  of  the  presiding 
judge  in  this  matter  be  reviewed.  He  wall  give  any  co-operation 
in  his  power  to  a  speedy  decision,  if  the  petitioner  will  advise  him 
that  it  desires  to  take  steps  to  that  end,  and  if  so  advised,  will  not 
try  the  case  on  the  day  set  on  the  docket,  but  will  postpone  the 
hearing  to  some  other  day. 

It  is  considered  that  the  endorsement  of  filing  upon  said  papers 
by  the  clerk  on  February  14,  1912,  be,  and  the  same  is  hereby, 
expunged;  and  that  the  prayer  of  the  N.  K.  Fairbank  Company 
that  the  presiding  judge  recuse  himself  and  certify  the  matter  to 
the  senior  circuit  judge  of  this  circuit  be,  and  they  are,  each 
severally  and  separately  overruled  and  denied,  at  the  cost  of  the 
petitioner.^ 


UNITED  STATES  v.  MURPHY. 

District  Court,  D.  Delaware.    1897. 

82  Fed.  893. 

Bradford,  District  Judge. — The  general  purpose  of  section  602  ^ 
is  plain.     It  is  that  the  administration  of  justice  by  a  District 

1  The  facts  are  omitted.  A  valuable  extended  discussion  of  the  points  out- 
lined in  the  reprinted  portion  of  this  case  is  found  in  an  additional  opinion 
on  pages  986-1001  of  194  Fed. 

Compare  State  v.  Wolfe,  11  Ohio  Cir.  Ct.  R.  591,  599  (1895);  Lincoln  v. 
Territory,  8  Okl.  546,  58  Pae.  730  (1899)  ;  Mnnce  v.  State,  187  Ind.  263,  118 
N.  E.  953,  953  (1918)  ;  State  v.  Palmer,  4  S.  D.  543,  57  N.  W.  490  (1894). 

In  the  following  cases  It  was  held  that  there  was  such  prejudice  on  the 
part  of  the  judge  as  to  disqualify  him  from  sitting:  Morehouse  v.  Morehouse, 
136  Cal.  332,  335,  68  Pac.  976  (1902)  ;  Givens  v.  Lord  Crawshaw,  21  Ky. 
Law  Eep.  1618,  1622-1623,  55  S.  W.  905,  907  (1900) :  Powers  v.  Common- 
wealth, 114  Ky.  237,  245-260,  70  S.  W.  644,  646-651   (1902).— Ed. 

2  Section  602  is  similar  to  section  22  of  the  Judicial  Code, — Ed. 


38  Cases  on  Federal  Procedure 

Court  shall  not,  through  a  vacancy  in  the  office  of  judge,  be  defeat- 
ed or  imduly  impeded;  that  causes,  civil  and  criminal,  shall,  not- 
withstanding the  vacancy,  be  preserved  in  their  full  force  and 
vitality,  to  be  effectively  proceeded  in  when  there  is  a  judge  author- 
ized to  discharge  the  functions  of  the  court ;  that  all  acts  and  steps, 
calling  for  or  serving  as  the  basis  of  judicial  action,  which  other- 
wise must  or  should  earlier  be  done  or  taken  in  court  in  the 
progress  of  a  cause,  shall  or  may  be  done  or  taken  therein  after 
the  termination  of  the  vacancy.  It  cannot  reasonably  be  supposed 
that  Congress,  in  enacting  section  602,  in  fact  intended  that  it 
should  not  apply  to  a  recognizance  in  a  criminal  cause.  It  is  not 
to  be  assumed  that  it  was  the  purpose  of  the  lawmaking  body  to 
sacrifice  substance  and  retain  the  shadow;  to  throw  away  the 
kernel  and  preserve  the  shell ;  to  continue  the  writs,  pleadings,  and 
other  proceedings  in  a  criminal  prosecution  until  after  the  termina- 
tion of  the  vacancy,  and  at  the  same  time  to  render  them  inef- 
fectual by  permitting  the  escape  of  the  accused  through  the  expir- 
ation, during  the  vacancy,  of  the  recognizance,  the  giving  of  which 
was  exacted  as  the  condition  of  his  discharge  from  custody.  Such 
an  intention  would  be  irreconcilable  with  the  spirit  and  broad 
purpose  of  the  statute.  The  question,  then,  is  whether  the  terms 
and  provisions  of  the  section,  properly  interpreted  and  construed, 
are  comprehensive  enough  to  include  a  recognizance  for  appear- 
ance and  answer  in  a  criminal  cause.  As  the  term  "pleadings" 
is  inapplicable,  if  the  recognizance  be  within  the  section  it  must 
come  under  "process"  or  "proceedings."  The  legal  meaning  of 
the  word  "process"  varies  according  to  the  context,  subject-mat- 
ter, and  spirit  of  the  statute  in  which  it  occurs.  The  process  of 
the  court,  in  its  narrowest  sense,  means  the  writs  and  mandates 
of  the  court,  under  the  seal  thereof.  In  this  sense  it  is  used  in 
sections  911  and  912  of  the  Revised  Statutes,  in  the  former  of 
which  it  is  provided  that  "all  writs  and  processes  issuing  from  the 
courts  of  the  United  States  shall  be  under  the  seal  of  the  court 
from  which  they  issue,  and  shall  be  signed  by  the  clerk  thereof;" 
and,  in  the  latter,  that  "all  process  issued  from  the  courts  of  the 
United  States  shall  bear  teste  from  the  day  of  such  issue."  In  its 
largest  sense,  process  is  e(|uivalcnt  to  procedure,  including  all  the 
steps  and  proceedings  in  a  cause  from  its  commencement  to  its 
conclusion.  In  Wayman  v.  Southard,  10  Wheat.  1,  27,  Chief 
Justice  Marshall,  in  delivering  the  opinion  of  the  court,  spoke  of 
the  words  "modes  of  ])rocess, "  as  contained  in  section  2  of  the 
act  of   Congress  of  September  29,   1789,  as  follows: 


District  Courts  39 

"  To  '  the  forms  of  writs  and  executions '  the  law  adds  the  words 
'modes  of  process.'  These  words  must  have  been  intended  to 
comprehend  something  more  than  'the  forms  of  writs  and  execu- 
tions.' We  have  not  a  right  to  consider  them  as  mere  tautology. 
They  have  a  meaning  and  ought  to  be  allowed  an  operation  more 
extensive  than  the  preceding  words.  The  term  is  applicable  to 
writs  and  executions,  but  it  is  also  applicable  to  every  step  taken  in 
a  cause.  It  indicates  the  progressive  course  of  the  business  from 
its  commencement  to  its  termination;  and  'modes  of  process'  may 
be  considered  as  equivalent  to  modes  or  manner  of  proceeding." 

Section  587  of  the  Revised  Statutes  provides  that  the  Circuit 
Court  "shall  proceed  to  hear  and  determine  the  suits  and  pro- 
cesses" certified  into  it  from  the  District  Court,  and  refers  to  "all 
suits  and  processes,  civil  and  criminal,  depending  in  said  District 
Court,  and  undetermined."  Again  in  section  588  provision  is 
made  for  the  hearing  and  determination  by  the  Circuit  Court  of 
the  "suits,  pleas  and  processes,  civil  and  criminal,"  "begun"  in 
the  District  Court.  The  term  "process"  is  used  in  section  602 
in  neither  its  narrowest  nor  its  broadest  sense.  While  not  includ- 
ing the  whole  cause,  there  can  be  little  or  no  doubt  that  it  was 
intended  to  embrace,  among  other  things,  all  the  means  provided 
by  law  for  compelling  one,  arrested  and  held  on  a  criminal  charge, 
to  appear  in  court,  there  to  be  judicially  dealt  w^ith.  The  section 
does  not  in  terms  restrict  "process"  to  process  of  the  court,  and 
in  the  absence  of  such  restriction  it  cannot  be  so  limited  by  con- 
struction. Otherwise,  a  distinction  without  any  reason  to  support 
it  would  exist  between  imprisonment  under  a  bench  warrant  and 
imprisonment  under  a  commitment  by  a  commissioner.  It  is  true 
that  the  word  "pending"  occurs  in  the  section.  In  so  far  as  it 
may  apply  to  process,  it  is  not  to  be  taken  in  the  strict  sense,  con- 
tended for  in  argument,  of  pending  in  court.  Such  a  construction 
would  largely  defeat  the  manifest  purpose  of  the  section.  A  rea- 
sonable meaning  can  be  assigned  to  the  term  without  doing  vio- 
lence to  the  rules  of  construction,  which  will  be  in  harmony 
with  the  general  scope  of  the  enactment.  In  People  v.  Lacombe, 
99  N.  Y.  43,  1'  N.  E.  599,  the  court  used  the  following  language, 
peculiarly  applicable  to  the  construction  of  the  section  under 
consideration. 

"A  strict  and  literal  interpretation  is  not  always  to  be  adhered 
to;  and,  where  the  case  is  brought  within  the  intention  of  the 
makers  of  the  statute,  it  is  within  the  statute,  although  by  a  tech- 
nical interpretation  it  is  not  within  its  letter.     It  is  the  spirit 


40  Cases  on  Federal  Procedure 

and  purpose  of  a  statute  which  are  to  be  regarded  in  its  interpre- 
tation; and  if  these  find  fair  expression  in  the  statute  it  should 
be  so  construed  as  to  carry  out  the  legislative  intent,  even  although 
such  construction  is  contrary  to  the  literal  meaning  of  some  pro- 
visions of  the  statute." 

''Process  pending  before"  the  court  must  be  held  to  include 
process,  in  the  sense  last  above  mentioned,  of  which  the  object 
has  not  been  fully  accomplished, — process  which  is  still  in  fieri, — 
process,  which,  if  continued  in  force,  will  result  either  in  secur- 
ing the  appearance  of  the  accused  to  meet  the  demands  of  justice 
or  in  fastening  upon  the  recognizors  liability  for  his  default.^ 


DISTRICT  COURTS. 

SECTION  II. 

Jurisdiction. 

UPSHUR  COUNTY  v.  RICH. 

Supreme  Court  of  tlie  United  States.    1890. 

135  V.  8.  467,  10  S.  Ct.  651,  34  L.  Ed.  196. 

Mr.  Justice  Bradley  delivered  the  opinion  of  flie  court.^ 

The  question  what  is  a  "suit"  in  the  sense  of  the  judiciary 
laws  of  the  United  States  has  been  frequently  considered  by  this 
court.  Reference  may  be  made  particularly  to  the  following  cases : 
Weston  V.  City  of  Charleston,  2  Pet.  449,  464;  Kendall  v.  United 
States,  12  Pet.  524;  Holmes  v.  Jennison,  14  Pet.  540,  566;  Ex 
parte  Milligan,  4  Wall.  2,  112 ;  Kohl  v.  United  States,  91  U.  S.  367, 
375;  Gaines  v.  Fuentes,  92  U.  S.  10,  21,  22;  Boom  Company  v. 
Patterson,  98  U.  S.  403,  406;  Ellis  v.  Davis,  109  U.  S.  485,  497; 
Hess  v.  Reynolds,  113  U.  S.  73,  78;  Pacific  Railroad  Removal 
Cases,  115  U.  S.  1,  18;  Searl  v.  School  District,  124  U.  S.  197,  199; 
Delaware  County  v.  Diebold  Safe  Co.,  133  U.  S.  473,  486,  487. 

In  the  four  cases  first  cited  this  court  determined  that  writs 
of  prohibition,  mandamus  and  habeas  corpus,  prosecuted  for  the 

1  Only   a    jiortion   of   tlic    opinion   ia    reprinted. — Ed. 

2  Only   a    portion    of   the   opinion    is   reprinted. — Ed. 


District  Courts  41 

attainment  of  the  parties'  rights,  are  suits  within  the  meaning  of 
the  law,  the  judgments  upon  which,  in  proper  cases  may  be  removed 
into  this  court  by  writ  of  error.  In  Weston  v.  City  of  Charleston 
Chief  Justice  Marshall  said:  "Is  a  writ  of  prohibition  a  suit? 
The  term  is  certainly  a  very  comprehensive  one,  and  is  under- 
stood to  apply  to  any  proceeding  in  a  court  of  justice  by  which 
an  individual  pursues  that  remedy  in  a  court  of  justice  which 
the  law  affords  him.  The  modes  of  proceeding  may  be  various, 
but  if  a  right  is  litigated  between  parties  in  a  court  of  justice, 
the  proceeding  by  which  the  decision  of  the  court  is  sought  is  a 
suit. ' '  This  definition  is  quoted  with  approbation  by  Chief  Justice 
Taney  in  Holmes  v.  Jennison,  which  was  a  case  of  habeas  corpus, 
and  by  other  judges  in  subsequent  cases. 

Boom  Company  v.  Patterson,  Pacific  Railroad  Removal  Cases, 
and  Searl  v.  School  District  were  cases  of  the  assessment  of  the 
value  of  lands  condemned  for  public  use  under  the  power  of 
eminent  domain.  The  general  rule  with  regard  to  cases  of  this 
sort  is,  that  the  initial  proceeding  of  appraisement  by  commis- 
sioners is  an  administrative  proceeding,  and  not  a  suit;  but  that 
if  an  appeal  is  taken  to  a  court,  and  a  litigation  is  there  insti- 
tuted between  parties,  then  it  becomes  a  suit  within  the  meaning 
of  this  act  of  Congress.  In  Boom  Company  v.  Patterson  the 
company  was  authorized  by  the  state  laws  of  Minnesota  to 
take  land  for  the  purpose  of  its  business,  and  to  have  commis- 
sioners appointed  to  appraise  its  value.  If  their  award  was  not 
satisfactory,  either  to  the  company  or  to  the  owner  of  the  land, 
an  appeal  lay  to  the  District  Court,  where  it  was  to  be  entered  by 
the  clerk  "as  a  case  upon  the  docket,"  the  land  owner  being 
designated  as  plaintiff  and  the  company  as  defendant.  The  court 
was  then  required  to  proceed  to  hear  and  determine  the  case  in 
the  same  manner  that  other  cases  were  heard  and  determined. 
Issues  of  fact  were  to  be  tried  by  a  jury,  unless  a  jury  was  waived. 
The  value  of  the  land  being  assessed  by  the  jury  or  the  court,  as 
the  case  might  be,  the  amount  of  the  assessment  was  to  be  entered 
as  a  judgment  against  the  company,  subject  to  review  by  the 
Supreme  Court  of  the  state  on  writ  of  error.  This  mode  of  pro- 
ceeding was  followed.  The  Boom  Company  and  the  land  owner 
both  appealed  from  the  award  of  the  commissioners.  When  the* 
case  was  brought  before  the  District  Court,  the  owner,  being  a 
citizen  of  another  State,  applied  for  and  obtained  its  removal  to 
the  Circuit  Court  of  the  United  States,  where  it  was  tried  before 
a  jury  and  a  judgment  was  rendered  upon  their  award.     We 


42  Cases  on  Federal  Procedure 

held  that  the  appeal  in  that  case  was  a  suit  within  the  meaning 
of  the  act  of  Congress  authorizing  the  removal  of  causes  from  the 
State  to  the  Federal  courts.  ]\Ir.  Justice  Field,  speaking  for  the 
court,  said:  "The  proceeding  in  the  present  case  before  the  com- 
missioners appointed  to  appraise  the  land  was  in  the  nature  of  an 
inquest  to  ascertain  its  value,  and  not  a  suit  at  law  in  the  ordi- 
nary sense  of  those  terms.  But  when  it  was  transferred  to  the 
District  Court  by  appeal  from  the  award  of  the  commissioners, 
it  took,  under  the  statute  of  the  State,  the  form  of  a  suit  at  law, 
and  was  thenceforth  subject  to  its  ordinary  rules  and  incidents. 

In  DelaM'^are  County  v.  Diebold  Safe  Co.  it  was  held  that  where 
a  claim  against  a  county  is  heard  before  county  commissioners, 
though  the  proceedings  are,  in  some  respects,  assimilated  to  pro- 
ceedings before  a  court,  yet  they  are  not  in  the  nature  of  a  trial 
inter  partes,  but  are  merely  the  allowance  or  disallowance,  by  coun- 
ty officers,  of  a  claim  against  the  county,  upon  their  own  knowl- 
edge, or  upon  any  proof  that  may  be  presented  to  them ;  but 
that  an  appeal  from  their  decision,  tried  and  determined  by  the 
Circuit  Court  of  the  county,  is  a  suit  removable  to  the  Circuit 
Court  of  the  United  States. 

In  Kohl  V.  United  States,  the  whole  proceeding  for  condemna- 
tion of  land  as  a  site  for  a  post-office  was  held  to  be  a  suit.  Mr. 
Justice  Strong,  delivering  the  opinion  of  the  court,  said:  "It  is 
difficult  to  see  why  a  proceeding  to  take  land  in  virtue  of  the 
Government's  eminent  domain,  and  determining  the  compensation 
to  be  made  for  it,  is  not,  within  the  meaning  of  the  statute,  a 
suit  at  common  law,  when  initiated  in  a  court."  This  view  of 
the  proceeding  as  a  whole,  instituted  and  concluded  in  a  court, 
and  analogous  to  the  proceeding  of  ad  quod  damnum  at  common 
law,  perhaps,  distinguished  this  case  from  the  other  cases  before 
referred  to. 

Two  of  the  other  cases  cited,  Gaines  v,  Fuentes  and  Ellis  v. 
Davis,  arose  out  of  proceedings  to  set  aside  the  probate  of  wills; 
and  although  the  granting  of  probate  of  a  will  is  not  ordinarily 
a  suit,  yet,  if  a  contestation  arises,  and  is  carried  on  between 
parties  litigating  with  each  other,  the  proceeding  then  becomes  a 
suit.  As  observed  by  Mr.  Justice  Matthews,  speaking  for  the 
court  in  P^llis  v.  Davis,  "Jurisdiction  as  to  wills  and  their  probate 
as  such,  is  neither  included  in,  nor  excepted  out  of,  the  grant  of 
judicial  power  to  the  courts  of  the  United  States.  So  far  as  it 
is  ex  parte  and  morely  administrative,  it  is  not  conferred,  and  it 
cannot  bo  exorcised  ])V  tlioni  at  all   nntil,   in  a  case  at  law  or  in 


'     District  Courts  43 

equity,  its  exercise  becomes  necessary  to  settle  a  controversy  of 
which  a  court  of  the  United  States  may  take  cognizance  by  reason 
of  the  citizenship  of  the  parties."  Similar  views  were  expressed 
by  Mr.  Justice  Miller  in  Hess  v.  Reynolds,  which  was  the  case 
of  a  creditor  instituting  proceedings  in  a  Probate  Court  against 
the  estate  of  his  deceased  debtor,  and  then  removing  them  into 
the  Circuit  Court  of  the  United  States. 

The  principle  to  be  deduced  from  these  cases  is,  that  a  proceed- 
ing, not  in  a  court  of  justice,  but  carried  on  by  executive  officers 
in  the  exercise  of  their  proper  functions,  as  in  the  valuation  of 
property  for  the  just  distribution  of  taxes  or  assessments,  is 
purely  administrative  in  its  character,  and  cannot,  in  any  just 
sense,  be  called  a  suit;  and  that  an  appeal  in  such  a  case,  to  a 
board  of  assessors  or  commissioners  having  no  judicial  powers,  and 
only  authorized  to  determine  questions  of  quantity,  proportion 
and  value,  is  not  a  suit,  but  that  such  an  appeal  may  become  a 
suit,  if  made  to  a  court  or  tribunal  having  power  to  determine 
questions  of  law  and  fact,  either  wdth  or  without  a  jury,  and 
there  are  parties  litigant  to  contest  the  case  on  the  one  side  and 
the  other.* 


UNITED  STATES  v.  BLOCK. 

Circuit  Court,  N.  D.  Illinois.    1872. 

24  Fed.  Cas.  No.  14,610,  p.  1176,  3  Bissell,  208. 

This  was  a  petition  filed  by  the  district  attorney,  in  the  name 
of  the  United  States,  for  the  condemnation  of  block  121,  school 
section  addition  to  Chicago,  commonly  called  the  "Bigelow  Block." 
The  various  parties  claiming  an  interest  in  the  land  or  any  part 
of  it,  whether  as  ovvaiers  of  the  fee,  tenants,  or  by  mortgages,  judg- 
ments, liens,  or  otherwise,  were  made  parties  defendant,  and  com- 
missioners appointed  by  the  court,  in  conformity  with  the  State 
statutes,  who  heard  the  evidence  as  to  the  value  of  the  property, 
the  damages  to  be  assessed,  and  the  rights  and  interests  of  the 
respective  parties.     On  the  coming  in  of  this  report  some  of  the 

3  For  a  comparatively  comprehensive  list  of  instances  where  the  courts  have 
held  there  was,  or  was  not,  a  "suit,"  see  37  Cye.  523-524. 

For  cases  comparing  the  meaning  of  "action,"  "cause  of  action,"  "case," 
and  "suit,"  see  37  Cye.  525.— Ed. 


44  Cases  on  Federal  Procedure 

parties  in  interest  movea  to  dismiss  the  proceedings  on  the  ground 
that  the  court  had  no  jurisdiction.  These  proceedings  were  in- 
stituted for  the  purpose  of  obtaining  ground  for  the  erection  of 
a  custom-house  and  Government  buildings  in  Chicago,  in  pursu- 
ance of  the  act  of  the  Legislature  of  Illinois  of  December  14th, 
1871,  and  the  act  of  Congress  of  December  21st,  1871.     *     *     • 

Drummond,  Circuit  Judge. — It  may  be  conceded  that  there  must 
be  an  act  of  Congress  which  has  given  the  court  jurisdiction 
either  by  express  words  or  by  necessary  implication.  The  second 
section  of  the  third  article  of  the  Constitution  states  that  the  judi- 
cial power  shall  extend,  among  other  cases,  "to  controversies  to 
which  the  United  States  shall  be  a  party."  This  is  undoubtedly 
a  controversy  to  which  the  United  States  is  a  party.  Under  this 
grant  of  power  Congress  legislated  at  a  very  early  day,  and  by 
the  act  of  September  24th,  1789,  commonly  called  the  judiciary 
act,  declared  that  the  Circuit  Court  should  have  cognizance  con- 
current with  the  courts  of  the  several  States,  of  all  suits  of  a 
civil  nature  at  common  law  or  in  equity,  where  the  matter  in 
dispute  exceeds  the  sum  of  $500,  and  the  United  States  are  plain- 
tiffs or  petitioners.  This  grant  was  undoubtedly  prospective.  At 
that  time  there  was  very  little  jurisdiction  given  by  express  enact- 
ment to  the  courts  of  the  United  States,  and  in  fact  this  act  creat- 
ed the  courts  of  the  United  States,  and  by  virtue  of  it  the  courts 
have,  up  to  this  time,  cognizance  of  many  cases. 

So  that  this  act  was  intended,  whenever  it  occurred  that  a  suit 
at  law  or  in  equity  could  be  commenced,  and  the  matter  in  dis- 
pute, exclusive  of  costs,  amounted  to  the  sum  of  $500,  to  allow 
the  United  States,  as  plaintiffs  or  petitioners,  to  bring  it  in  the 
Circuit  Court  of  the  United  States.  Therefore,  irrespective  of  the 
act  of  March  3,  1815,  the  effect  of  which  is  not  necessary  for  us 
to  here  consider,  the  only  question  is,  whether  this  is,  within  the 
meaning  of  this  statute,  a  suit  of  a  civil  nature  at  common  law  or 
in  eriuity,  and  of  the  value  of  $500,  and  the  United  States  are 
plaintiffs  or  petitioners.  The  value,  of  course,  is  greater  than  the 
amount  indicated.  The  United  States  are  petitioners,  and  thus 
two  of  the  conditions  of  the  statute  are  complied  with.  The  only 
remaining  condition  is,  is  it  a  suit  of  a  civil  nature  at  common  law 
or  in  ('(juity?  It  is  contoiidcd  that  the  act  docs  not  comprehend 
any  other  suit  of  a  civil  iiitlurc  at  coininon  law  or  in  equity,  except 
such  suits  as  were  known  at  tlic  time  of  its  passage.  If  that  is 
the  true  construction  of  the  statute,  then  there  might  be  some  doubt 


District  Courts  45 

whether  the  court  would  have  jurisdiction.  But  that  has  not  been 
the  construction  which  has  been  given  to  the  statute.  For  it 
must  be  now  considered  as  the  settled  doctrine  of  the  Supreme 
Court  of  the  United  States,  that  whenever  any  statute  is  passed 
which  authorizes  the  commencement  of  a  civil  suit,  and  under 
which  a  suit  can  be  maintained,  that  then,  although  it  may  not 
have  been  known  in  precisely  that  form  to  the  common  law,  this 
statute  vests  in  the  Circuit  Court  jurisdiction  of  the  case,  and  it 
comes  within  the  meaning  of  the  law,  being  a  suit  of  a  civil  nature 
at  common  law  or  in  equity.  Take  the  case  of  an  action  brought 
on  a  bond ;  it  may  be  that  the  action  is  of  such  a  character  that 
at  common  law  it  could  not  be  maintained ;  but  if  the  statute 
authorizes  the  maintenance  of  the  action,  then  the  act  of  1789  vests 
in  the  court  jurisdiction  of  the  case,  without  any  express  words; 
and  so  liberal  has  been  the  construction  given  to  this  statute,  in 
cases  of  even  criminal  procedure,  where,  by  that  act,  the  Circuit 
courts  have  concurrent  jurisdiction  with  the  District  courts ;  and 
by  subsequent  legislation — as  by  the  act  of  February  13,  1862 
(12  Stat.  339),  the  District  Court,  by  the  language  of  the  statute, 
was  alone  clothed  with  jurisdiction  of  such  cases ;  that  the  Supreme 
Court  of  the  United  States  held  that  they  could  go  back  to  the 
act  of  1789,  and  sustain  jurisdiction  bj^  virtue  of  that  law  in  the 
Circuit  courts.    U.  S.  v.  Holliday,  3  Wall.  (70  U.  S.)  407. 

A  question  in  principle  similar  to  the  one  arising  in  this  case 
was  discussed  in  a  case  cited  at  the  argument, — Ex  parte  Biddle 
(Case  No.  1,391).  That  was  a  proceeding  by  partition  confessedly 
existing  only  by  virtue  of  the  laws  of  Massachusetts,  and  the  court 
uses  this  language:  "Parties  entitled  to  sue  in  the  courts  of  the 
United  States  are,  in  general,  entitled  to  pursue  in  such  courts  all 
the  remedies  for  the  vindication  of  their  rights  which  the  local 
laws  of  the  State  authorize  to  be  pursued  in  its  own  courts." 

This  has  been  sanctioned  by  the  Supreme  Court  of  the  United 
States  (Parsons  v.  Bedford,  3  Pet.  (28  U.  S.)  433)  ;  and  we  cite 
it  for  the  purpose  of  showing  w^hat  is  the  meaning  of  the  words 
used  in  the  act  of  1789,  "suits  at  common  law."  The  court  is 
commenting  on  an  amendment  to  the  Constitution  proposed  by 
Congress  at  its  first  session,  where  those  words  are  used:  "When, 
therefore,  we  find  that  the  amendment  requires  that  the  right  of 
trial  by  jury  shall  be  preserved  in  suits  at  common  law,  the  natural 
conclusion  is,  that  this  distinction  was  present  to  the  minds  of 
the  framers  of  the  amendment.  Bj^  common  law,  they  meant  what 
the  Constitution  denominated  in  the  third  article  'law',  not  merely 


46  Cases  on  Federal  Procedure 

suits  which  the  common  law  recognized  among  its  old  and  settled 
proceedings,  but  suits  in  which  legal  rights  were  to  be  ascer- 
tained and  determined,  in  contradiction  to  those  where  equit- 
able rights  alone  were  recognized,  and  equitable  remedies  were 
administered;  or  where,  as  in  the  admiralty,  a  mixture  of  pub- 
lic law  and  of  maritime  law  and  equity  was  often  found  in  the 
same  suit,"  etc. 

Now,  it  would  follow,  if  this  reasoning  is  correct,  that  the  lan- 
guage in  the  11th  section  of  the  act  of  1789,  "all  suits  of  a  civil 
nature  at  common  law  or  in  equity,"  is  used  in  contradistinction 
to  suits  in  admiralty,  the  exclusive  jurisdiction  of  which  was  vested 
by  the  same  act  in  the  District  Court,  and  also  to  criminal  cases, 
jurisdiction  of  which  was  conferred  by  other  sections.  So  that  if 
this  be  true,  and  by  a  suit  of  a  civil  nature  at  common  law  or 
in  equity  is  meant  not  the  old  and  settled  proceedings  as  recog- 
nized at  common  law  or  in  equity,  but  suits  in  which  legal  rights 
are  to  be  ascertained  and  determined,  in  contradistinction  to  cases 
in  admiralty  or  criminal  law,  then  this  application  is  within  the 
meaning  of  the  11th  section  of  the  act  of  1789.  It  is  a  con- 
troversy to  which  the  United  States  is  a  party  and  petitioner, 
and  it  is  immaterial  for  the  purposes  of  jurisdiction  whether  the 
forms  of  proceeding  are  those  in  ancient  use,  for  they  may  be 
changed  by  statute  or  moulded  as  a  court  of  chancery  will  always 
mould  the  forms  of  proceedings  to  suit  the  exigencies  of  the  case.^ 


LORMAN  V.  CLARKE. 

Circuit  Court,  D.  Michigan.    1841. 

15  Fed.  Cas.  No.  8516,  p.  915,  2  McLean,  568. 

Opinion  of  the  Court.— The  11th  section  of  the  act  of  1789 
(1  Stat.  78)  gives  to  the  Circuit  courts  jurisdiction  of  all  suits 
of  a  civil  nature,  at  common  law  or  equity,  where  the  sum  exceeds 

1  Only  a  portion  of  tlie  facts  and  opinion  is  reprinted. 

A  MasHachusftts  Htatutc  allowed  the  administrator  or  executor  of  one 
killed  by  the  nej^lijjont  mt  of  a  railroad  or  street  railway  corporation,  or  by 
tlu!  unfitncHH,  j^ro.ss  nefjlij^enco,  or  earelcssiiess  of  servants  to  reeover  not  less 
than  $."300  or  more  than  .^i^jjOOO  as  a  (inc.  The  recovery  was  to  be  based  upon 
an  indictment.  An  action,  brought  in  reliance  upon  that  statute,  was  held  not 
to  be  a  suit  of  a  civil  nature,  but  in  effect  an  action  to  recover  a  penalty. 
It,  tlicrefore,  roiild  not  be  iii;iint;iined  in  the  federal  court.  Lyman  v.  Boston 
and  A.  R.  Co,  7U  Fed.  409   (1895).— Ed. 


District  Courts  47 

five  hundred  dollars.  In  some  of  the  States  there  is  no  court  of 
chancery,  but  this  does  not  affect  the  exercise  of  a  chancery  juris- 
diction by  the  Federal  Court  in  such  States.  This  jurisdiction 
extends  alike  to  all  the  States.  And  it  gives  relief,  where  plain 
and  adequate  redress  cannot  be  had  at  law,  agreeably  to  the  well 
established  rule  in  the  English  Chancery.  If  a  State  were  to 
authorize  a  chancery  jurisdiction  by  her  own  courts,  in  all  con- 
troversies concurrently  with  a  court  at  law,  this  would  not  enlarge 
the  jurisdiction  of  the  Federal  Court  of  Chancery.  It  could  only 
interpose  its  remedial  powers  where  the  remedy  was  inadequate 
at  law.  The  rules  of  practice  of  the  high  court  of  chancery,  in 
England,  have  been  adopted  by  the  Supreme  Court,  and  are 
obligatory  upon  the  Circuit  courts.  They  have  power,  however, 
to  adopt  other  rules  not  inconsistent  with  the  general  rules. 

It  is  argued  that,  in  the  exercise  of  the  powers  thus  given  and 
defined,  we  must  look  to  the  settled  principles  of  an  equitable 
jurisdiction  in  England;  and  that  no  relief  can  here  be  given 
which  could  not  be  given  in  that  country.  And  that  what  a 
Federal  Court  of  Chanceiy  may  do  in  one  State  it  may  do  in 
another.  That  its  jurisdiction  not  being  derived  from  the  laws 
of  a  State,  its  powers  are  in  no  respect  influenced  by  such  laws. 
That  if  a  different  rule  were  to  prevail  the  court  would  lose  the 
national  character  which  was  intended  to  be  given  to  it,  by  its 
organization  under  the  laws  of  the  Union.  The  judiciary  of  the 
United  States  constitutes  a  co-ordinate  and  independent  branch 
of  the  Government,  and  its  powers  are  co-extensive  with  the  laws. 
It  was  designed,  undoubtedly,  to  secure  a  uniform  construction 
and  enforcement  of  the  laws  of  the  Union.  And  in  this  respect, 
in  all  the  States,  the  rule  of  decision  is  unvaried.  But  the  Federal 
Court  has  jurisdiction  between  citizens  of  different  States,  as  well 
as  in  cases  arising  under  the  laws  of  the  United  States.  And  where 
controversies  are  brought  before  it,  which  do  not  arise  under  the 
laws  of  the  Union,  by  what  law  are  they  to  be  determined.  The 
law  of  the  contract  is  the  law  of  the  place  where  it  was  made  and 
was  to  be  executed.  There  is  no  unwritten  or  common  law  of  the 
Union.  This  rule  of  action  is  found  in  the  different  States,  as 
it  may  have  been  adopted  and  modified  by  legislation,  and  a  course 
of  judicial  decisions.  The  rule  of  decision,  then,  must  be  found 
in  the  local  law  written  or  unwritten.  No  foreign  principle  attaches 
to  the  Federal  Court  when  exercising  its  powers  within  a  State. 
It  gives  effect  to  the  local  law,  under  which  the  contract  was  made, 
or  by  virtue  of  which  the  right  is  asserted.     And  this  independ- 


48  Cases  on  Federal  Procedure 

entlj^  of  any  act  of  Congress  adopting  the  modes  of  proceedings,  at 
common  law,  of  the  State  courts.  And  the  principle  applies  as 
well  to  proceedings  in  chancery  as  at  law. 

The  term  "jurisdiction"  is  often  used,  not  very  appropriately, 
more  in  reference  to  the  subject  matter  of  the  contract,  or  right 
set  up,  than  to  the  capacity  of  the  court.  The  capacity  of  the 
■  Federal  Court,  for  the  exercise  of  chancery  powers,  is  received 
from  the  laws  of  the  Union.  It  is  not  dependent  for  this,  in  any 
degree,  on  the  local  law.  But  these  powers  are  exercised  in  all 
cases  where  the  contract  or  right  comes  appropriately  under  them. 
If  a  right  exist  within  a  State  which  cannot  be  enforced  at  law, 
and  which  properly  belongs  to  a  chancer}^  jurisdiction,  there  can 
be  no  doubt  that  relief  may  be  given  by  the  Federal  Court.  And 
it  is  immaterial  whether  a  similar  right  has  come  under  the  action 
of  a  court  of  chancery  in  this  country  or  in  England.  The  right 
may  be  new.  It  may  originate  under  a  local  statute  or  usage,  and 
exist  nowhere  else.  But  this  constitutes  no  objection  to  its  en- 
forcement. The  inquiry  is,  is  there  no  adequate  relief  at  law, 
and  does  the  right  come  within  the  powers  of  a  court  of  chancery.^ 


UNITED  STATES  FIDELITY  &  G.  CO.  v.  U.  S. 

Supreme  Court  of  the  United  States.     1907. 

204  U.  S.  349,  27  S.  Ct.  381,  51  L.  Ed.  516. 

By  an  act  of  Congress  approved  August  13,  1894,  entitled  "An 
act  for  the  protection  of  persons  furnishing  materials  and  labor 
for  the  construction  of  public  works,"  it  was  provided:  "That 
hereafter  any  person  or  persons  cntci'ing  into  a  formal  contract 
with  the  United  States  for  the  construction  of  any  public  build- 
ing, or  the  prosecution  and  completion  of  any  public  work  or  for 
repairs  upon  any  public  building  or  public  work,  shall  be  required 
before  commencing  such  work  to  execute  the  usual  penal  bond, 
with  good  and  sufficient  sureties,  M'ith  the  additional  obligations 
thai  such  contractor  or  contractors  shall  promptly  make  payments 
to  all  persons  supplying  him  or  them  labor  and  materials  in  the 
prosecution  of  the  work  provided  for  in  such  contract;  and  any 
jjcrson    or   j)ersons   making   ap[)lieation   therefor,   and   furnishing 

1  Only  a  portion  of  tlic  f)pinion  ia  rnprintcd. — Ed. 


District  Courts  49 

affidavit  to  the  department  under  the  direction  of  which  said  work 
is  being,  or  has  been,  prosecuted,  that  labor  or  materials  for  the 
prosecution  of  such  work  has  been  supplied  by  him  or  them,  and 
payment  for  which  has  not  been  made,  shall  be  furnished  with  a 
certified  copy  of  said  contract  and  bond,  upon  which  said  person 
or  persons  supplying  such  labor  and  materials  shall  have  a  right  of 
action,  and  shall  be  authorized  to  bring  suit  in  the  name  of  the 
United  States  for  his  or  their  use  and  benefit  against  said  con- 
tractor and  sureties  and  to  prosecute  the  same  to  final  judgment 
and  execution :  Provided,  That  such  action  and  its  prosecutions 
shall  involve  the  United  States  in  no  expense.  Sec.  2.  Provided 
that  in  such  cases  the  court  in  which  such  action  is  brought  is 
authorized  to  require  proper  security  for  costs  in  case  judgment 
is  for  the  defendant."    28  Stat.  278,  c.  280. 

On  the  same  day,  August  13,  1904,  Congress  passed  an  act  pro- 
viding that  whenever  any  recognizance,  stipulation,  bond  or  un- 
dertaking conditioned  for  the  faithful  performance  of  any  duty, 
or  for  doing  or  refraining  from  doing  anything  in  such  recog- 
nizance, stipulation,  bond  or  undertaking  specified,  is  by  the  laws 
of  the  United  States  required  or  permitted  to  be  given  with  one  or 
more  sureties,  it  should  be  lawful  to  accept  such  instrument  from 
a  corporation  having  power  to  guarantee  the  fidelity  of  persons 
holding  positions  of  public  or  private  trust,  and  to  execute  and 
guarantee  bonds  and  undertakings  in  judicial  proceedings.  The 
act  provided  that  any  surety  company  doing  business  under  the 
provisions  of  that  act  "may  be  sued  in  respect  thereof  in  any 
court  of  the  United  States  which  has  now  or  hereafter  may  have 
jurisdiction  of  actions  or  suits  upon  such  recognizance,  stipula- 
tion, bond,  or  undertaking,  in  the  district  in  which  such  recog- 
nizance, stipulation,  bond,  or  undertaking  was  made  or  guaran- 
teed, or  in  the  district  in  which  the  principal  office  of  such  com- 
pany is  located."    28  Stat.  §  5,  c.  282,  p.  279. 

Proceeding  under  the  above  acts  the  United  States,  in  1899,  made 
a  written  contract  with  one  Churchyard  to  furnish  labor,  materials, 
tools  and  appliances  for  the  construction  of  a  public  building, 
taking  from  him  the  required  bond  with  the  United  States  Fidelity 
and  Guaranty  Company,  a  corporation,  as  surety. 

The  present  action,  brought  in  the  Circuit  Court  on  that  bond, 
was  by  the  United  States,  "suing  herein  for  the  benefit  and  on 
behalf  of  James  S.  Kenyon,"  who  furnished  a  contractor  for  use 
in  the  construction  of  the  proposed  Government  building,  mate- 
rials of  the  value  of  $66.05,  for  which  the  latter  neglected  and 
Wheaton  C.  F.  P.— 4 


50  Cases  on  Federal  Procedure 

refused  to  pay.    Damages  to  the  amount  of  $500  were  claimed  in 
the  declaration. 

The  defendant,  the  United  States  Fidelity  and  Guaranty  Com- 
pany, pleaded  that  it  did  not  owe  the  sum  demanded.  The 
plaintiff  introduced  testimony,  but  the  defendant  introduced  none 
and  it  appearing  upon  the  face  of  the  declaration  that  the  value 
of  the  matter  in  dispute  was  less  than  $2,000,  he  moved  that  the 
action  be  dismissed  for  want  of  jurisdiction  in  the  Circuit  Court. 
That  motion  was  denied,  and  judgment  for  $206.47  was  entered 
against  the  Fidelity  and  Guarantj-  Company  for  the  use  and  bene- 
fit of  Kenyon.     United  States  v.  Churchyard,  132  Fed.  Rep.  82. 

]\Ir.  Justice  Harlan,  after  making  the  foregoing  statement, 
delivered  the  opinion  of  the  court. 

This  case  is  here  upon  a  certificate  as  to  the  original  juris- 
diction of  the  Circuit  Court  of  the  United  States  of  this  action. 

A  Circuit  Court  of  the  United  States  as  provided  in  the  Judi- 
ciary Act  of  ►1887-88,  may  take  original  cognizance  of  any  suit, 
at  common  law  or  in  equity,  arising  under  the  laws  of  the  United 
States,  if  the  value  of  the  matter  in  dispute  exceeds  two  thousand 
dollars,  exclusive  of  interest  and  costs.  25  Stat.  433,  c.  866.  But 
if,  within  the  meaning  of  that  act,  the  United  States  is  the  plain- 
tiff in  the  action,  then  jurisdiction  exists  in  a  Circuit  Court  with- 
out regard  to  such  value.  United  States  v.  Sayward,  160  U.  S. 
493;  United  States  v.  Shaw,  39  Fed.  Rep.  433;  United  States  v. 
Kentucky  River  Mills,  45  Fed.  Rep.  273;  United  States  v.  Reid, 
90  Fed.  Rep.  522. 

The  contention  of  the  Fidelity  Company  is  that  the  Government, 
in  this  case,  is  to  be  deemed  a  nominal  party  only,  its  name  being 
used  as  plaintiff  simply  under  the  authority  of  the  above  act  of 
1894,  c.  280.  In  support  of  this  position  our  attention  is  called 
to  the  following  among  other  cases:  Browne  v.  Strode,  5  Cranch 
303;  IMcXutt  v.  Bland,  2  How.  9,  14;  Maryland  v.  Baldwin,  112 
U.  S.  490 ;  Stewart  v.  B.  &  0.  R.  R.  Co.,  168  U.  S.  445. 

Browne  v.  Strode  was  a  suit  in  the  Circuit  Court  for  the  Dis- 
trict of  Virginia  in  which  the  persons  named  in  the  declaration  as 
plaintiffs  were  justices  of  the  peace,  all  citizens  of  Virginia.  The 
suit  was  on  a  bond  given  by  an  executor  in  conformity  with  a 
Virginia  statute,  and  was  for  the  recovery  of  a  dolit  due  from 
the  testator  in  his  lifetime  to  ;ni  alien,  a  Rrilish  subject.  The 
dcffiidant  was  a  citizen  of  Xirgiiiin.     This  conil  held  that  the  Cir- 


District  Courts  51 

euit  Court  had  jurisdiction,  notwithstanding  the  justices  were  nom- 
inal parties  only,  while  the  beneficial  party  was  an  alien,  and  the 
defendant  a  citizen  of  the  State  in  which  the  suit  was  brought. 

McNutt  V.  Bland  was  a  suit  upon  a  bond  given  by  a  sheriff 
and  running  to  the  Governor  of  the  State,  conditioned  for  the 
faithful  performance  of  the  duties  of  his  office.  The  statute 
authorized  suit  to  be  brought  and  prosecuted  from  time  to  time 
at  the  cost  of  any  party  injured  until  the  whole  amount  of  the 
penalty  was  recovered.  The  suit  was  brought  in  the  name  of  the 
Governor  for  the  use  of  certain  parties  who  were  citizens  of  New 
York.  The  court  held  that  the  sheriff  and  his  sureties,  citizens 
of  Mississippi,  could  be  used  by  the  parties  in  interest  in  their  own 
name,  and  that  no  sound  reason  could  be  perceived  "for  denying 
the  right  of  prosecuting  the  same  cause  of  action  against  the 
sheriff  and  his  sureties  in  the  bond,  by  and  in  the  name  of  the 
Governor,  who  is  a  purely  naked  trustee  for  the  party  injured. 
He  is  a  mere  conduit  through  whom  the  law  affords  a  remedy  to 
the  person  injured  by  the  acts  or  omissions  of  the  sheriff;  the 
Governor  cannot  prevent  the  institution  or  prosecution  of  the  suit, 
nor  has  he  any  control  over  it.  The  real  and  only  plaintiffs  are 
the  plaintiffs  in  the  execution,  who  have  a  legal  right  to  make 
the  bond  available  for  their  indemnity,  which  right  could  not  be 
contested  in  a  suit  in  a  State  court  of  ]\Iississippi,  nor  in  a  Circuit 
Court  of  the  United  States,  in  any  other  mode  of  proceeding  than 
on  the  sheriff's  bond." 

Maryland  v.  Baldwin,  112  U.  S.  490,  491,  was  an  action  in  a 
State  court  on  an  administrator's  bond  in  the  name  of  the  State 
for  the  benefit  of  one  Markley,  a  citizen  of  New  Jersey,  the 
obligors  in  the  bond  being  citizens  of  Maryland.  The  action  was 
removed  to  the  Circuit  Court  of  the  United  States.  After  referring 
to  the  cases  of  Browne  v.  Strode,  and  McNutt  v.  Bland,  the  court 
said:  "The  justices  of  the  peace  in  the  one  case  and  the  Gov- 
ernor in  the  other  were  mere  conduits  through  whom  the  law 
afforded  a  remedy  to  persons  aggrieved,  who  alone  constituted  the 
complaining  parties.  So  in  the  present  case  the  State  is  a  mere 
nominal  party ;  she  could  not  prevent  the  institution  of  the  action, 
nor  control  the  proceedings  or  the  judgment  therein.  The  case 
must  be  treated,  so  far  as  the  jurisdiction  of  the  Circuit  Court 
of  the  United  States  is  concerned,  as  though  Markley  was  alone 
named  as  plaintiff;  and  the  action  was  properly  removed  to  that 
court. ' ' 

Stewart  v.  Bait.  &  Ohio  R.  R.  Co,  was  an  action  against  a  rail- 


52  Cases  on  Federal  Procedure 

road  company  by  an  administrator  to  recover  damages  for  the 
benefit  of  a  widow  whose  husband's  death  was  alleged  to  have 
been  caused  by  the  negligence  of  the  defendant  company.  In  the 
course  of  the  discussion  of  the  controlling  questions  in  that  case 
the  court  observed  in  passing  that  "for  purposes  of  jurisdiction 
in  the  Federal  Courts  regard  is  had  to  the  real  rather  than  to  the 
nominal  party,"  and  that  even  in  an  action  of  tort  ''the  real  party 
in  interest  is  not  the  nominal  plaintiff  but  the  party  for  whose 
benefit  the  recovery  is  sought." 

This  case  differs  from  those  just  cited  and  stands,  we  think,  on 
exceptional  grounds.  The  United  States  is  not  here  a  merely  nom- 
inal or  formal  party.  It  has  the  legal  right,  was  a  principal  party 
to  the  contract,  and,  in  view  of  the  words  of  the  statute,  may  be 
said  to  have  an  interest  in  the  performance  of  all  its  provisions. 
It  may  be  that  the  interests  of  the  Government,  as  involved  in 
the  construction  of  public  works,  will  be  subserved  if  contractors 
for  such  works  are  able  to  obtain  materials  and  supplies  promptly 
and  with  certainty.  To  that  end  Congress  may  have  deemed  it 
important  to  assure  those  who  furnish  such  materials  and  supplies 
that  the  Government  would  exert  its  power  directly  for  their  pro- 
tection. It  may  well  have  thought  that  the  Government  was  under 
some  obligation  to  guard  the  interests  of  those  whose  labor  and 
materials  would  go  into  a  public  building.  Hence,  the  statute 
required  that,  in  addition  to  a  penal  bond  in  the  usual  form,  one 
should  be  taken  that  would  contain  the  specific,  special  obligation 
directly  to  the  United  States  that  the  contractor  or  contractors 
"shall  promptly  make  payments  to  all  persons  supplying  him  or 
them  labor  and  materials  in  the  prosecution  of  the  work."  The 
Government  is  a  real  party  here  because  the  declaration  opens, 
"The  United  States,  suing  herein  for  the  benefit  of  and  on  behalf 
of  James  Kenyon  *  *  *  comes  and  complains,"  and  alleges 
that  the  "defendants  became  and  are  indebted  to  the  United  States 
for  the  benefit  of  the  said  James  S.  Kenyon."  In  a  large  sense 
the  suit  has  for  its  main  o])joct  to  enforce  that  provision  in  the 
bond  that  requires  prompt  payments  by  the  contractor  to  mate- 
rialmen and  laborers.  The  bond  is  not  simply  one  to  secure  the 
faithful  performance  hy  the  contractor  of  the  duties  he  owes 
directly  to  the  (iovcrnment  in  relation  to  the  specific  work  under- 
taken by  him.  It  contains,  as  just  stated,  a  special  stipulation  with 
the  United  States  that  the  contractor  shall  i)romptly  make  pay- 
ments to  all  persons  supplying  labor  and  materials  in  the  prose- 
cution (if  the  work  specified  in  his  contract.  This  part  of  the 
bond,  iis  (lid   its  main   provisions,  ran  to  the  United  States,  and 


District  Courts  53 

was  therefore  enforcible  by  suit  in  its  name.  We  repeat,  the 
present  action  may  fairly  be  regarded  as  one  by  the  United  States 
itself  to  enforce  the  specific  obligation  of  the  contractor  to  make 
prompt  payment  for  labor  and  materials  furnished  to  him  in  his 
work.  There  is  therefore  a  controversy  here  between  the  United 
States  and  the  contractor  in  respect  of  that  matter.  The  action  is 
none  the  less  by  the  Government  as  a  litigant  party,  because  only 
one  of  the  persons  who  supplied  labor  or  materials  will  get  the 
benefit  of  the  judgment.  We  are  of  opinion,  in  view  of  the  pecu- 
liar language  of  the  act  of  1894  for  the  protection  as  well  of  the 
United  States  as  of  all  persons  furnishing  materials  and  labor 
for  the  construction  of  public  works,  that  it  is  not  an  unreasonable 
construction  of  the  words  in  the  Judiciary  Act  of  1887-88,  "or 
in  which  controversy  the  United  States  are  plaintiffs  or  peti- 
tioners," to  hold  that  the  United  States  is  a  real  and  not  a  mere 
nominal  plaintiff  in  the  present  action,  and  therefore  that  the 
Circuit  Court  had  jurisdiction. 

This  interpretation  of  the  statute  finds  some  support  in  the 
above  act  of  1894,  e.  282,  passed  the  same  day  as  the  act,  c.  280, 
for  the  protection  of  materialmen  and  laborers,  and  which  provides 
that  suits  against  a  fidelity  or  guaranty  corporation,  accepted 
as  surety  in  any  recognizance,  stipulation,  bond  or  undertaking 
given  to  the  United  States,  may  be  sued  in  any  court  of  the  United 
States  having  jurisdiction  of  suits  upon  such  instrument.  There 
is  in  that  act  no  express  limitation  as  to  the  amount  involved  in 
suits  of  that  character  in  either  of  the  acts  passed  in  1894.  Taking 
the  two  acts  together,  there  is  reason  to  say  that  Congress  intended 
to  bring  all  suits,  embraced  by  either  act,  when  brought  in  the 
name  of  the  United  States,  within  the  original  cognizance  of  the 
Circuit  courts  of  the  United  States,  without  regard  to  the  amount 
in  dispute.  And  this  view  as  to  the  intention  of  Congress  is 
strengthened  by  an  examination  of  the  act  of  February  24,  1905, 
33  Stat.  811,  c.  778,  which  amends  the  above  statute  of  1904,  c.  280. 
After  providing  that  persons  supplying  labor  and  materials  for 
the  construction  of  a  public  work  shall  have  the  right  to  intervene 
in  any  suit  brought  by  the  United  States  against  the  contractor, 
that  act  declares  that  if  no  such  suit  is  brought  by  the  United 
States  within  six  months  after  completion  of  the  contract  then  the 
person  supplying  labor  or  material  to  the  contractor  "shall  have 
a  right  of  action  and  shall  be  and  are  hereby  authorized  to  bring 
suit  in  the  name  of  the  United  States  in  the  Circuit  Court  of 
the  United  States  in  the  district  in  which  said  contract  was  to 
be  performed  and  executed,  irrespective  of  the  amount  in  con- 


54  Cases  on  Federal  Procedure 

troversy  in  such  suit,  and  not  elsewhere,  for  his  or  their  use  and 
benefit,  against  said  contractor  and  his  sureties,  and  to  prosecute 
the  same  to  final  judgment  and  execution." 

It  is  true  that  this  statute  can  have  no  direct  application  here, 
because  the  present  action  was  instituted  long  prior  to  its  passage 
and  after  the  trial  court  had  decided  the  question  of  the  jurisdic- 
tion of  the  Circuit  Court.  As  the  act  of  1905  does  not  refer  to 
cases  pending  at  its  passage,  the  question  of  jurisdiction  depends 
upon  the  law  as  it  was  when  the  jurisdiction  of  the  Circuit  Court 
was  invoked  in  this  action.  Nevertheless,  that  act  throws  some 
light  on  the  meaning  of  the  act  of  1894,  e.  280,  for  the  protec- 
tion of  materialmen  and  laborers,  and  tends  to  sustain  the  view 
based  on  the  latter  act,  namely,  that  in  suits  brought  in  the  name 
of  the  Government  for  their  benefit  the  United  States  is  a  real 
litigant,  not  a  mere  nominal  party,  and  that  of  such  suits,  the 
Government  being  plaintiff  therein,  and  having  the  legal  right, 
the  Circuit  Court  may  take  original  cognizance  without  regard 
to  the  value  of  the  matter  in  dispute.  There  are  cases  which  take 
the  opposite  view,  but  the  better  view  we  think  is  the  one  expressed 
herein. 

The  judgment  is 

Affirmed.^ 

]\Ir.  Justice  Brewer  dissents. 


UNITED  STATES  v.   HARTWELL. 

Supreme  Court  of  the  United  States.    1867. 
73  V.  S.  (6  Wallace)  385,  18  L.  Ed.  830. 
]\Ir.  Justice  Swayne  delivered  the  opinion  of  the  court. 

Was  the  defendant  an  officer  or  person  "charged  with  the  safe- 
keeping of  the  public  money"  within  tbe  meaning  of  the  act? 
We  think  lie  was  both. 

He  was  a  public  officer.  The  General  Appropriation  Act  of 
July  23d,  1866,2  authorized  the  assistant  treasurer,  at  Boston,  with 
the  approbation  of  Ihe  Secretary  of  the  Treasury,  to  appoint  a 

ISoe  also  U.  S.  v.  Rra-Rcad  Mill  and  Elevator  Co.,  171  Fed.  501,  510-511 
(1909). 

But  Hce  UniU'd  States  v.  Ilonderlonj,',  102  Fed.  2  (1900);  Unitod  States 
V.  Shcridnn,  119  Fed.  U.Ui  (1902);  United  States  v.  Barrett,  l.'J  Fed.  189 
(190rj);  Burrell  v.  United  States,  147  Fed.  44,  45-46,  77  C.  C.  A.  a08,  309-310 
(1906),  contra.— Ed. 

«  14  Stat,  at   Largo,  200. 


District  Courts  55 

specified  number  of  clerks,  who  were  to  receive,  respectively,  the 
salaries  thereby  prescribed.  The  indictment  avers  the  appoint- 
ment of  the  defendant  in  the  manner  provided  in  the  act. 

An  office  is  a  public  station,  or  employment,  conferred  by  the 
appointment  of  Government.  The  term  embraces  the  ideas  of 
tenure,  duration,  emolument,  and  duties. 

The  employment  of  the  defendant  was  in  the  public  service  of 
the  United  States.  He  was  appointed  pursuant  to  law,  and  his 
compensation  was  fixed  by  law.  Vacating  the  office  of  his  superior 
would  not  have  affected  the  tenure  of  his  place.  His  duties  were 
continuing  and  permanent,  not  occasional  or  temporary.  They 
were  to  be  such  as  his  superior  in  office  should  prescribe. 

A  Government  office  is  different  from  a  Government  contract. 
The  latter  from  its  nature  is  necessarily  limited  in  its  duration 
and  specific  in  its  objects.  The  terms  agreed  upon  define  the  rights 
and  obligations  of  both  parties,  and  neither  may  depart  from  them 
without  the  assent  of  the  other.^ 


TOWN  OF  PAWLET  v.  CLARK. 
Supreme  Court  of  the  United  States.    i815. 
13  U.  S.  (9  Craiich)  292,  3  L.  Ed.  735. 
Story,  J.,  delivered  the  opinion  of  the  court  as  follows: 

The  first  question  presented  in  this  case  is,  whether  the  court 
has  jurisdiction.     The  plaintiffs  claim  under  a  grant   from  the 

3  United  States  v.  Maurice,  2  Brockenbrough,  103 ;  Jackson  v.  Healy,  20 
Johnson,  493;  Vaughn  v.  English,  8  California,  39;  Sauford  v.  Boyd,  2 
Cranch's  Circuit  Court,  78;  Ex  parte  Smith,  Id.  693. 

Only  that  portion  of  the  opinion  which  defines  the  word  "oflQcer"  is  re- 
printed. 

The  Post  Master  General  is  an  officer  of  the  United  States.  Post  Master 
General  v.  Early,  25  U.  S.  (12  Wheaton)  136,  146-147,  6  L,  Ed.  577,  581 
(1827). 

In  the  following  cases  it  was  held  that  the  person  in  question  was  not  an 
officer  of  the  United  States:  United  States  v.  Germaine,  99  U.  S.  508,  25  L. 
Ed.  482  (1878)  civil  surgeon  appointed  hy  the  commissioner  of  pensions  under 
U.  S.  Rev.  St.  (1878)  sec.  4777;  United  States  v.  Mouat,  124  U.  S.  303.  8 
S.  Ct.  505,  31  L.  Ed.  463  (1888)  paymaster's  clerk,  appointed  by  a  paymaster 
in  the  navy  with  the  approval  of  the  Secretary  of  the  Navy;  United  States 
V.  Smith,  124  U.  S.  525,  8  S.  Ct.  595,  31  L.  Ed.  534  (1888)  clerk  of  collector 
of  customs;  Auffmordt  v.  Hedden,  137  U.  S.  310,  326-328,  11  S.  Ct.  103,  107- 
108,  34  L  Ed.  674,  679-680  (1890)  merchant  appraiser;  Saunders  v.  U.  S., 
73  Fed.  782,  784  (1896)  jailer  of  state  jail;  United  States  v.  Haas,  167  Fed. 
211,  214  (1906). 

If  one  treats  his  duties  as  occasional,  he  cannot  later  successfully  claim  that 
they  were  permanent  and  that  he  was  acting  as  an  officer.  Pray  v.  U.  S.,  14 
Ct.  CI.  256,  262-263   (1878).— Ed. 


56  Cases  on  Federal  Procedure 

State  of  Vermont,  and  the  defendants  claim  under  a  grant  from 
the  State  of  New  Hampshire,  made  at  the  time  when  the  latter 
State  comprehended  the  whole  territory  of  the  former  State. 
The  Constitution  of  the  United  States,  among  other  things,  ex- 
tends the  judicial  power  of  the  United  States  to  controversies 
"betAveen  citizens  of  the  same  State  claiming  lands  under  grants 
of  different  States."  It  is  argued  that  the  grant  under  which 
the  defendants  claim  is  not  a  grant  of  a  different  State  within 
the  meaning  of  the  Constitution,  because  Vermont,  at  the  time  of 
its  emanation  was  not  a  distinct  Government,  but  was  included 
in  the  same  sovereignty  as  New  Hampshire. 

But  it  seems  to  us  that  there  is  nothing  in  this  objection.  The 
Constitution  intended  to  secure  an  impartial  tribunal  for  the 
decision  of  causes  arising  from  the  grants  of  different  States; 
and  it  supposed  that  a  State  tribunal  might  not  stand  indifferent 
in  a  controversy^  where  the  claims  of  its  own  sovereign  were  in 
conflict  with  those  of  another  sovereign.  It  had  no  reference 
whatsoever  to  the  antecedent  situation  of  the  territory,  whether  in- 
cluded in  one  sovereignty  or  another.  It  simply  regarded  the  fact 
whether  gi'ants  arose  under  the  same  or  under  different  States. 
Now  it  is  very  clear  that  although  the  Territory  of  Vermont  was 
once  a  part  of  New  Hampshire,  yet  the  State  of  Vermont,  in  its 
sovereign  capacity,  is  not,  and  never  was  the  same  as  the  State 
of  New  Hampshire.  The  grant  of  the  plaintiffs  emanated  purely 
and  exclusively  from  the  sovereignty  of  Vermont;  that  of  the  de- 
fendants purely  and  exclusively  from  tlie  sovereignty  of  New 
Hampshire.  The  sovereign  power  of  New  Hampshire  remains  the 
same  although  it  has  lost  a  part  of  its  territory ;  that  of  Vermont 
never  existed  until  its  territory  was  separated  from  the  jurisdiction 
of  New  Hampshii-e.  The  circumstance  that  a  part  of  the  terri- 
tory or  population  was  once  under  a  common  sovereign  no  more 
mjilces  the  States  the  same,  llian  the  circumstance  that  a  part  of 
tbe  members  of  one  corporal  ion  constitutes  a  component  part  of 
another  corporation,  makes  the  corporation  the  same.  Nor  can  it 
be  affirmed,  in  any  correct  sense,  that  the  grants  are  of  the  same 
State;  for  the  grant  of  the  defondants  could  not  have  been  made 
by  the  State  of  Vermont,  since  lliat  State  had  not  at  that  time 
any  legal  existence;  and  the  grant  of  Ihe  plaintiffs  could  not  have 
been  made  by  New  TTampshire,  since,  at  ihat  time,  New  Hampshire 
had  no  jurisdiction  or  soverei^ni  existence  by  the  name  of  Vermont. 
The  case  is.  tlierci'ore,  pf|ua]ly  within  the  letter  and  spirit  of  the 
clause  of  the  Constitution.      It   would,  indeed,  have  been  a  suffi- 


District  Courts  57 

eient  answer  to  the  objection,  that  the  Constitution  and  laws  of 
the  United  States,  by  the  admission  of  Vermont  into  the  Union 
as  a  distinct  Government,  had  decided  that  it  was  a  different 
State  from  that  of  New  Hampshire.^ 


COWELL  V.  CITY  WATER  SUPPLY  CO. 

Circuit  Court  of  Appeals,  Eighth  Circuit.    1903, 

121  Fed,  53,  57  C.  C.  A.  393. 

Sanborn,  Circuit  Judge. — This  is  an  appeal  from  a  decree  which 
sustained  a  demurrer  to  and  dismissed  a  bill  in  equity  against  the 
City  Water  Supply  Company,  a  corporation,  and  other  parties, 
which  was  exhibited  by  William  F.  Cowell  in  the  District  Court 
of  Wapello  Count}^,  in  the  State  of  Iowa,  in  September,  1898. 
The  suit  was  removed  to  the  Circuit  Court  of  the  United  States 
for  the  Southern  District  of  Iowa  on  the  petition  of  the  defend- 
ants and  on  April  3,  1899,  the  complainant,  Cowell,  made  a  motion 
to  remand  the  case  to  the  State  court  on  the  ground  that  the  matter 
in  dispute,  exclusive  of  interests  and  costs,  did  not  exceed  the  sum 
of  $2,000.  This  motion  was  denied  and  the  ruling  of  the  court 
denying  it  is  the  first  error  assigned.  This  alleged  error  will  be 
first  considered,  because,  if  this  ruling  was  erroneous,  the  court 
below  was  without  jurisdiction  to  determine  the  merits  of  the  case, 
and  it  will  be  unnecessary  to  state  or  discuss  them. 

When  the  motion  to  remand  w^as  made,  the  sum  or  value  of 
the  matter  in  dispute  was  determinable  from  the  averments  of  the 
bill  and  an  affidavit  of  William  A.  Underwood  that  the  value  of 
the  property  of  the  defendant  the  City  Water  Supply  Company 
was  $300,000.  The  bill  contained  allegations  of  the  following 
facts:  The  complainant,  Cowell,  was  the  owner  of  one  of  400 
bonds,  of  $1,000  each,  made  by  the  Iowa  Water  Company,  secured 
by  a  mortgage  of  its  waterworks  at  Ottumwa,  Iowa,  and  dated 
April  15,  1887.  Default  had  been  made  in  1894  in  the  payment 
of  the  interest  upon  these  bonds,  and  the  defendants  Frederick 
E.  Potter,  Winthrop  Smith,  Charles  G.  Sauford,  and  Frederick 

1  See  also  Stevenson  v.  Tain,  195  U.  S.  165,  168-170,  25  S.  Ct.  6,  49  L.  Ed. 
142.— Ed. 


58  Cases  on  Federal  Procedure 

H.  Mills  became  a  committee  of  the  bondholders,  as  such  issued 
a  plan  for  protecting  the  interests  of  the  bondholders,  and  solicited 
the  deposit  of  bonds  Avith  themselves  under  that  plan.  The  com- 
plainant deposited  his  bond  under  the  plan,  and  327  other  bonds 
of  like  amount  and  character  were  deposited  with  the  committee 
in  the  same  way.  Thereupon  this  committee  foreclosed  the  mort- 
gage securing  these  bonds,  bid  in  the  property  at  the  foreclosure 
sale,  incorporated  the  defendant  the  City  AVater  Supply  Com- 
pany, unlawfully  issued  $80,000  of  preferred  stock  and  $20,000 
of  common  stock  of  this  new  company,  conveyed  the  waterworks 
and  their  appurtenances  to  this  corporation,  and  caused  it  to 
make  two  mortgages  upon  this  property — one  for  $150,000  and 
one  for  $325,000 — both  of  which,  together  with  the  bonds  which 
they  secure,  are  void,  and  constitute  a  fraud  upon  the  rights  of 
the  complainant,  for  numerous  reasons  set  forth  at  large  in  the 
bill.  The  committee  have  also  organized  an  illegal  voting  trust, 
by  means  of  which  they  hold  the  possession  and  power  to  vote  the 
stock  of  the  water  supply  company,  and  the  possession  and  opera- 
tion of  the  plant  and  property  of  that  company.  The  complainant 
brings  this  suit  on  behalf  of  himself  and  on  behalf  of  all  others 
of  the  same  class  who  may  join  in  the  proceeding,  and  his  prayer 
is  that  the  organization  of  the  City  Water  Supply  Company,  the 
stock  it  has  issued,  and  the  mortgages  it  has  made,  be  declared 
void;  that  his  undivided  interest,  which  he  avers  to  be  1/325  of 
the  property  held  by  the  City  Water  Supply  Company,  may  be 
declared  to  be  free  from  all  liens  and  incumbrances  except  a  lien 
for  $51,000,  evidenced  by  an  old  underlining  mortgage  made  by 
the  Ottumwa  Waterworks  Company  before  the  mortgage  which 
was  foreclosed  was  executed,  or  that,  in  the  event  that  the  court 
should  sustain  the  incorporation  of  the  supply  company,  and  the 
stock  and  mortgages  it  has  made,  the  complainant  may  recover 
of  the  individuals  constituting  the  committee  a  sum  of  money 
(•qmil  10  1/325  of  $524,000  and  1/325  of  $1,509.79,  and  1/325  of 
the  income  and  earnings  of  Ihe  property  since  it  came  into  the 
hands  of  Ihe  committee  on  September  12,  1897. 

It  will  1)1'  seen  fioiii  this  I)rief  statement  of  the  averments  of 
the  bill  that  the  j)i'oj)erly  of  the  City  Water  Supply  Company 
was  not  worth,  and  is  not  claimed  to  be  worth,  more  than  $525,000, 
find  that  the  complainant's  alleged  share  of  it  was  not  of  a  value 
exceeding  ]/:',25  of  $525,000,  or  $1,615.38,  while  the  amount  of 
the  jtidgment  for  money  whieli  he  sought  to  recovei-  in  case  the 
stock  and    tlic   mortgages  of  the  supply-  company  were  sustained 


District  Courts  59 

did  not  exceed  $1,650,  and  the  del)t  he  was  endeavoring  to  collect 
was  only  $1,000  and  interest. 

The  Circuit  courts  of  the  United  States  have  no  jurisdiction 
unless  "the  matter  in  dispute  exceeds,  exclusive  of  interest  and 
costs,  the  sum  or  value  of  two  thousand  dollars."  25  Stat.  433; 
1  U.  S.  Comp.  St.  1901,  tit.  13,  §  629,  p.  508. 

Where  a  suit  is  brought  by  one  of  a  class  on  behalf  of  himself 
and  all  others  similarly  situated  who  may  join  in  the  proceeding, 
the  sum  or  value  of  the  matter  in  dispute  is  the  amount  or  aggre- 
gate value  of  the  interests  of  those  who  have  joined  in  the  suit. 
It  is  not  the  amount  or  value  of  the  interest  of  the  entire  class. 
Foster's  Federal  Practice,  §  16,  p.  33.  As  no  one  had  joined  in 
this  suit  wdth  the  complainant  when  the  motion  to  remand  was 
made,  the  sum  or  value  of  the  matter  in  dispute  at  that  time  was 
the  amount  or  value  of  that  which  he  would  gain  or  of  that  which 
the  defendants  would  lose  if  he  recovered  that  for  which  he  prayed 
in  his  bill. 

It  was  admitted  by  the  court  below,  and  it  is  conceded  by  coun- 
sel for  the  appellee,  that  the  amount  or  value  of  the  property  or 
of  the  money  which  the  complainant  sought  to  recover  in  this 
suit  was  less  than  $2,000.  But  their  contention  is  that  because 
the  complainant  prays  in  his  bill  that  the  mortgages  made  by  the 
City  Water  Supply  Company,  aggregating  $475,000,  be  canceled 
and  annulled,  and  that  his  1/325  of  the  property  covered  by  them 
may  be  declared  to  be  free  from  their  liens,  the  amount  involved  is 
the  amount  of  the  mortgages,  $475,000,  a)id  the  Federal  Court 
has  jurisdiction.  In  support  of  this  contention,  cases  are  cited  in 
which  owners  of  property  were  contesting  opposing  claims  to  it, 
where  it  is  held  that  the  value  of  the  property  the  complainant 
claims  to  own  is  the  test  of  jurisdiction,  as  in  Berthold  v.  Hoskins 
(C.  C),  38  Fed.  772;  Lehigh  Zinc  and  Iron  Co.  v.  New  Jersey 
Zinc  and  Iron  Co.  (C.  C),  43  Fed.  545;  Parker  v.  Morrill,  106 
U.  S.  1,  1  Sup.  St.  14,  27  L.  Ed.  72;  and  Smith  v.  Adams,  130 
U.  S.  167,  175,  9  Sup.  Ct.  566,  32  L.  Ed.  895.  If  the  complainant 
were  the  owner  of  the  waterworks,  these  cases  would  be  controlling, 
and  the  value  of  that  property  would  be  the  test  of  the  jurisdic- 
tion of  the  court  below,  and  that  value  would  have  sustained  it. 
But  since  he  claims  to  be  the  owner  of  only  1/325  of  this  prop- 
erty, this  fraction  of  its  value,  and  not  its  whole  value,  is  the 
test  of  the  jurisdiction  in  this  case,  and  that  test  defeats  it.  In 
Smith  V.  Adams,  130  U.  S.  167,  175,  9  Sup.  Ct.  566,  32  L.  Ed. 
895,  the  Supreme  Court  said:    "By  'matter  in  dispute'  is  meant 


60  Cases  on  Federal  Procedure 

the  subject  of  litigation — the  matter  upon  which  the  action  is 
brought  and  issue  is  joined,  and  in  relation  to  which,  if  the  issue 
be  one  of  fact,  testimony  is  taken."  Now,  the  only  subject  of  this 
litigation  is  either  the  bond  for  $1,000,  or  the  1/325  of  the  prop- 
erty of  the  City  "Water  Supply  Company,  or  the  judgment  for 
not  exceeding  $1,650  against  the  members  of  the  bondholders' 
committee  for  which  the  complainant  prays,  and  in  either  case 
the  sum  or  value  of  the  matter  in  dispute  does  not  exceed  $2,000. 
In  the  complainant's  attack  upon  the  mortgages,  he  does  not  seek, 
and  he  could  not,  in  any  event,  secure  in  this  suit,  as  it  stood  when 
the  motion  to  remand  was  made,  more  than  the  discharge  of  the 
liens  of  the  mortgages  and  the  stock  of  the  supply  company  upon 
his  1/325  of  its  property.  He  could  not  obtain  more  relief  than 
the  cancellation  of  these  charges  as  to  his  interest  in  the  property. 
He  was  the  only  complainant,  and  the  interests  of  the  owners  of 
the  other  324/325  of  this  property  could  not  have  been  relieved 
from  the  lien  of  these  mortgages  or  of  this  stock  by  any  decree 
which  the  complainant  alone  could  have  secured  in  their  absence 
from  the  suit.  The  jurisdictional  amount  in  dispute,  therefore, 
was  not  the  entire  stock  of  the  water  supply  company,  nor  the 
entire  amount  of  the  mortgages,  but  the  undivided  interest  in  the 
property  which  the  complainant  sought  in  his  bill,  or  the  sum 
which  he  sought  to  recover  in  money  of  the  individual  bondholders, 
or  the  debt  of  $1,000  which  he  sought  to  collect,  and  in  neither 
case  did  the  sum  or  value  in  dispute  exceed  $2,000,  so  that  the 
court  below  could  not  obtain  jurisdiction. 

In  Parker  v.  Morrill,  106  U.  S.  1,  2,  1  Sup.  Ct.  14,  27  L.  Ed. 
72,  Parker  brought  a  suit  in  equity  against  Morrill  and  another 
to  remove  a  cloud  upon  the  title  to  some  25,000  acres  of  land, 
created  by  a  claim  set  up  by  ]\lorrill.  Parker,  who  owned  only 
Ihe  undivided  twentieth  of  the  tract,  appealed  from  the  decree 
dismissing  his  bill.  The  Supreme  Court  held  that  the  matter  in 
dispute  was  not  the  entire  tract  claimed  by  Morrill,  but  the  one- 
twentieth  of  that  tract  owned  by  Parker. 

In  I\Iill.>r  V.  Clark,  138  U.  S.  223,  225,  11  Sup.  Ct.  300,  34  L. 
Hd.  966,  Mrs.  ^liller,  who  was  one  of  six  legatees,  exhibited  a  bill 
ill  ('qnily  to  compel  the  other  five  legatees  to  pay  over  to  the 
executor  of  the  will  under  which  she  claimed  $5,377.83,  to  be 
divided  by  the  executor  e(|ii;illy  among  the  six  legatees.  The  de- 
fendants claimed  thai  fix  y  liiid  received  this  amount  from  the 
tf'slatrix  as  a  gift  bcffji-c  her  dciilh.  The  Circuit  Court  sustained 
tlif  jurisdiction.    When  the  case  arrived  on  appeal  in  the  Supreme 


District  Courts  61 

Court,  the  jurisdiction  of  that  court  was  challenged  on  the  ground 
that  the  amount  in  dispute  did  not  exceed  $5,000,  and  that  court 
held  that  the  amount  in  dispute  in  the  proceeding  was  not  the 
$5,377.83  which  the  complainant  insisted  that  the  defendants 
should  pay  over  to  the  executor  to  be  distributed,  but  that  it  was 
the  interest  or  share  of  that  amount  which  the  complainant  claimed 
that  she  would  ultimately  be  entitled  to  receive — that  is  to  say, 
one-sixth  of  that  amount — and  upon  this  grjound,  the  appeal  was 
dismissed  for  want  of  jurisdiction.  After  this  decision  the  Cir- 
cuit Court  dismissed  the  suit  upon  the  same  ground.  Miller  v. 
Clark  (C.  C),  52  Fed.  900. 

In  Bruce  v.  Manchester  &  Keene  Railroad,  117  U.  S.  514,  515, 
6  Sup.  Ct.  849,  29  L.  Ed.  990,  two  bondholders,  holding  interest 
coupons  amounting  to  $3,400,  brought  suit  to  foreclose  a  mortgage 
for  $500,000  which  secured  the  payment  of  bonds  to  that  amount, 
together  with  the  coupons  attached  thereto,  of  which  those  held 
by  the  complainants  were  a  part.  Upon  an  appeal  to  the  Supreme 
Court  that  court  decided  that  the  amount  in  dispute  was  not  the 
$500,000  secured  by  the  mortgage  which  the  complainants  sought 
to  foreclose,  but  the  amount  of  the  complainants'  interest  therein, 
or  $3,400,  and  upon  this  ground  dismissed  the  appeal  for  lack  of 
jurisdiction  in  that  court. 

In  Werner  v.  Murphy  (C.  C),  60  Fed.  769,  772,  where  a  creditor 
whose  claim  was  less  than  $2,000  brought  a  suit  to  avoid  a  fraudu- 
lent conveyance  of  property  worth  more  than  $100,000,  the  court 
held  that  the  amount  in  dispute  was  not  the  value  of  the  property 
fraudulently  conveyed,  but  the  amount  of  the  complainant's  claim, 
and  it  sustained  a  demurrer  to  the  bill  because  that  amount  was 
less  than  $2,000. 

In  Smithson  v.  Hubbell  (C.  C),  81  Fed.  593,  a  creditor  sought 
to  enjoin  the  payment  of  a  fraudulent  claim,  and  it  was  held 
that  the  amount  in  dispute  was  the  amount  of  the  claim  of  the 
creditor,  and  not  the  amount  of  the  fraudulent  claim,  the  payment 
of  which  that  creditor  sought  to  restrain. 

Perhaps  these  cases  sufficiently  illustrate  and  establish  the  rule 
that  it  is  the  amount  or  value  of  that  which  the  complainant  claims 
to  recover,  or  the  sum  or  value  of  that  which  the  defendant  will 
lose  if  the  complainant  succeeds  in  his  suit,  that  constitutes  the 
jurisdictional  sum  or  value  of  the  matter  in  dispute,  which  tests 
the  jurisdiction  of  the  Circuit  courts  of  the  United  States.  Parker 
V.  Morrill,  106  U.  S.  1,  2,  1  Sup.  Ct.  14,  27  L.  Ed.  72 ;  Miller  v. 
Clark,  138  U.  S.  223,  225,  11  Sup.  Ct.  300,  34  L.  Ed.  966;  Miller 


62  Cases  on  Federal  Procedure 

V.  Clark  (C.  C),  52  Fed.  900;  Bruce  v.  Manchester  &  Keene  Rail- 
road, 117  U.  S.  514,  515,  6  Sup.  Ct.  849,  29  L.  Ed.  990 ;  Werner 
V.  Murphy  (C.  C),  60  Fed.  769,  772;  Smithson  v.  Hubbell  (C.  C), 
81  Fed.  593;  Elgin  v.  Marshall,  106  U.  S.  578,  1  Sup.  Ct.  484, 
27  L.  Ed.  249;  Robinson  v.  "West  Virginia  Loan  Co.  (C.  C),  90 
Fed.  770 ;  Colvin  v.  Jacksonville,  158  U.  S.  456,  15  Sup.  Ct.  866, 
39  L.  Ed.  1053.  Since  that  amount  or  value  was  less  than  $2,000 
in  the  ease  at  bar  when  the  motion  to  remand  was  made,  the  court 
below  never  had  jurisdiction  of  this  suit,  the  decree  below  must 
be  reversed,  and  the  case  must  be  remanded  to  the  Circuit  Court, 
with  instructions  to  remand  it  to  the  State  court  from  which  it 
came,  and  it  is  so  ordered.^ 


NOLEN  v.  RIECHMAN. 

District  Court,  W.  D.  Tennessee,  W.  D.    1915. 

225  Fed.  812. 

Per  Curiam. — The  parties  to  the  suit  are  all  citizens  of  Tennessee 
and  residents  of  ^Memphis.  The  city  of  Memphis,  through  its 
board  of  commissioners  and  in  pursuance  of  the  statute,  has  passed 
a  resolution  fixing  the  bond  to  be  given  by  operators  of  motor 
busses  at  $5,000 ;  and  official  orders  have  been  given  to  compel 
operators  of  such  vehicles  to  comply  with  the  provision  of  the 
statute,  which  requires  the  execution  and  filing  of  such  bond.  The 
plaintiff  is  financially  unable  to  procure  the  bond.  The  automo- 
bile he  is  operating  will  thus  be  materially  reduced  in  earning 
power  and  in  value  to  him  through  enforcement  of  the  law.  Street 
railways  are  in  operation  under  charters  and  franchises  within 

1  Judge  Thayer  rendered  a  concurring  opinion  which  is  omitted. 

As  to  what  is  the  amount  in  difiputc,  see  further,  Taylor  v.  Decatur  Mineral 
&  Land  CV).,  112  Fed.  449,  449-450  (1901)  suit  for  dissolution  of  a  corpora- 
tion and  the  distribution  of  its  assets;  Humes  v.  City  of  Little  Rock,  138 
Fed.  929,  9.'{0,  9.'K{  (1898)  suit  to  enjoin  ordinance  imposing  a  license  tax; 
Louisville  &  N.  R.  Co.  v.  Bittorman,  144  Fed.  M,  4;?-45,  7.")  C.  C.  A.  192,  201- 
20,3  (1906)  injunction  to  restrain  Hcalj)ing  of  tickets;  Denver  &  R.  G.  E.  Co. 
V.  Mills,  222  Fed.  481,  485,  i:J8  C.  C.  A.  77,  81  (1915)  suit  to  restrain  taking 
right  of  way;  S<-ott  v.  Frazier,  258  Fed.  669,  671-674  (1919)  suit  to  enjoin 
payment  of  public  funds. 

Where  a  suit  is  ufxin  a  demand  on  which  the  law  liquidates  the  damage? 
the  amount  so  liquidated,  and  not  the  amount  claimed  in  the  complaint,  con- 
sfitutcH  the  matter  in  disjiute,  Bergman  v.  Inman,  Poul.sen  &  Co.,  91  Fed. 
293   (1893).— Ed. 


District  Courts  63 

Memphis,  and  no  such  bond  is  required  by  their  owners.  Taxieabs 
are  in  use  upon  the  public  highways  and  grounds  of  the  city; 
but  whether  operators  of  taxieabs  are  amenable  to  the  bond  re- 
quirement is  reduced  to  a  question  of  law  between  counsel.  Be- 
fore the  passage  of  the  statute,  though  no  dates  appear,  the  plain- 
tiff obtained  license  to  operate  his  car  on  the  streets  of  Memphis 
for  a  period  of  one  year. 

'  (1)  The  sole  ground  of  jurisdiction  in  this  court  is  the  claim 
of  constitutional  invalidity  of  the  statute  because  of  its  alleged 
violation  of  the  fourteenth  amendment.  In  spite  of  the  Federal 
question  so  presented,  the  defendants  earnestly  insist  that  the 
real  purpose  of  the  suit  is  to  enjoin  criminal  proceedings,  and 
that  a  court  of  equity  cannot  entertain  jurisdiction  for  that  reason. 
Before  considering  this  feature  of  the  defense,  we  feel  called 
upon  to  notice  a  question  of  jurisdiction  which  arises  upon 
the  face  of  the  petition.  The  only  allegation  there  found  upon 
the  subject  of  the  amount  involved  is  that  it  is  "greater  than 
two  thousand  ($2,000)  dollars."  This,  of  course,  is  not  in  accord- 
ance with  the  requirement  that  the  matter  in  controversy  must 
exceed,  exclusive  of  interest  and  costs,  "the  sum  or  value  of  three 
thousand  dollars"  (section  24,  Judicial  Code),  nor  are  we  at  lib- 
erty to  entertain  jurisdiction  unless  this  requirement  is  met  (A. 
B.  Andrews  Co.  v.  Puncture  Proof  Footwear  Co.  (C.  C),  168 
Fed.  762,  765,  and  citations).  "We  might  treat  the  allegation  as 
an  inadvertence,  but  the  acknowledged  inability  of  the  plaintiff 
to  give  the  statutory  bond,  and  his  limited  interest  in  the  machine 
operated  are  suggestive  of  a  serious  question  as  to  whether  the 
jurisdictional  amount  is  really  involved.  In  the  absence  of  allega- 
tion or  showing,  it  is  hard  to  understand  how  the  loss  arising  from 
an  operator's  inability  to  use  a  single  automobile  for  hire  can  » 
be  sufficient  to  satisfy  the  statutory  requirement;  and  it  is  not 
alleged  that  the  plaintiff,  or  any  one  in  whose  behalf  he  brings  the 
suit,  owns  or  causes  to  be  operated  two  or  more  of  such  machines. 
The  question  is  at  once  presented,  then,  whether  the  alleged 
loss  of  the  plaintiff  could  be  added  to  the  losses  of  other  operators 
similarly  situated,  for  purposes  of  jurisdiction.  The  principle 
upon  which  such  an  aggregation  can  be  employed  as  a  test  of 
jurisdiction  is  that  the  persons  joining  in  the  suit  must  have  a 
.common  and  undivided  interest,  not  distinct  interests,  in  the 
amount  involved;  still,  this  is  not  to  say  that,  if  the  property 
involved  is  in  truth  separately  owned  and  held,  the  parties  may 
not  constitute  a  class  who  may  be  joined  for  the  sake  of  conven- 


64  Cases  on  Federal  Procedure 

ience  and  economy ;  it  is  to  say  that  aggregation  of  their  pecuniary 
interests  is  not  permissible  for  making  up  the  jurisdictional 
amount.  Clay  v.  Field,  138  U.  S.  464,  479,  480,  11  Sup.  Ct.  419, 
34  L.  Ed.  1044.  The  plaintiff  and  other  jitney  operators  have  a 
common  interest,  it  is  true,  in  the  question  whether  a  bond  can 
be  rightfully  exacted  of  each  of  them ;  but  it  is  equally  plain  that 
the  damage  which  the  plaintiff  alleges,  and  that  of  other  operators, 
as  well  as  their  titles  to  the  vehicles  they  operate,  are  separate 
and  distinct.  It  may  well  be,  therefore,  that  the  plaintiff  can 
maintain  a  representative  suit  for  the  benefit  of  himself  and  other 
like  operators  under  equity  rule  38  (198  Fed.  XXIX,  115  C.  C.  A. 
XXIX),  and  yet  not  be  entitled  to  have  their  damages  aggregated 
to  make  up  the  amount  requisite  to  jurisdiction  (Simpson  v.  Geary, 
204  Fed.  507,  510  (D.  C,  three  judges  sitting)  ;  Wheless  v.  St. 
Louis,  180  U.  S.  379,  381,  21  Sup.  Ct.  402,  45  L.  Ed.  583 ;  Bate- 
man  V.  Southern  Oregon  Co.,  217  Fed.  933,  938,  133  C.  C.  A. 
605  (C.  C,  A.  9th  Circ).  See,  also.  Citizens'  Bank  v.  Cannon, 
164  U.  S.  319,  321,  322,  17  Sup.  Ct.  89,  41  L.  Ed.  451 ;  Walter 
v.  Northeastern  R.  R.  Co.,  147  U.  S.  370,  373,  374,  13  Sup.  Ct. 
348,  37  L.  Ed.  206.i 

In  Kurtz  v.  Moffitt,  115  U.  S.  487,  6  S.  Ct.  148,  29  L.  Ed.  458 
(1885),  Mr.  Justice  Gray,  after  discussing  the  cases  on  the  sub- 
ject, said,  "From  this  review  of  the  statutes  and  decisions,  the 
conclusion  is  inevitable  that  a  jurisdiction,  conferred  by  Congress 
upon  any  court  of  the  United  States,  of  suits  at  law  or  in  equity 
in  which  the  matter  in  dispute  exceeds  the  sum  or  value  of  a 
certain  number  of  dollars,  includes  no  case  in  which  the  right 

1  Only  a  portion  of  the  opinion  is  reprinted. 

In  the  following  cases  plaintiffs  wore  allowed  to  join  the  amounts  of  their 
claims:  Railroad  Commission  of  Louisiana  v.  Texas  &  P.  Ry.  Co.,  144  Fed. 
68,  72,  7.1  C.  C.  A.  226,  2:^0  (1906);  McDaniol  v.  Travlor,  196  U.  S.  415, 
426-431,  25  S.  Ct.  369,  372-374,  49  L.  ed.  533,  538-540  (1905). 

An  assignee  of  ehoscs  in  action  may  join  claims,  if  his  assignors  were 
citizens  of  different  states  from  the  defendant,  and  maintain  a  suit  thereon, 
though  the  assignors  could  not  have  maintained  separate  suits,  because  none 
of  the  claims  singly  were  suflScient  in  amount.  Davis  v.  Mills,"  99  Fed.  39, 
40-41   (1900). 

It  is  not  fatal  to  allege  that  the  "amount"  instead  of  "matter"  in  con- 
troversy is  ho  much,  lilackhurn  v.  Portland  Gold  Mining  Co.,  175  U.  S.  571, 
574,  20  H.  Ct.  222,  223,  44  L.  ed.  276,  278-279   (1900). 

A  bill  to  recover  an  interest  in  lands,  in  which  the  only  allegation  with 
rcHpect  to  the  amount  or  value  in  controversy  is  that  "complainants  are 
informed  and  believe  that  the  whole  of  said  lands  are  %vorth  $12,000,  and  the 
amount  demanded  by  them  herein  is  more  than  $2,000"  does  not  meet  the 
statutory  ref|uiroment  to  give  a  federal  court  jurisdiction.  Dupree  v.  Leg- 
gette,  140  Fed.  770  (1905).— Ed. 


District  Courts  65 

of  neither  party  is  capable  of  being  valued  in  money;  and  there- 
fore that  writs  of  habeas  corpus  are  not  removable  from  a  State 
court  into  a  Circuit  Court  of  the  United  States  under  the  act  of 
March  3,  1875,  ch.  137,  §  2,  and  this  case  was  rightly  remanded 
to  the  State  court. ' '  ^ 


KIRBY  V.  AMERICAN  SODA  FOUNTAIN  CO. 
Supreme  Court  of  the  United  States.     1904. 
194  V.  S.  141,  24  8.  Ct.  619,  48  L.  Ed.  911. 

Kirby  filed  his  original  amended  petition  in  the  District  Court 
of  Dallas  County,  Texas,  against  the  American  Soda  Fountain 
Company,  averring  that  he  was  induced  by  false  representations 
by  defendant  to  agree  to  exchange  his  soda  fountain  apparatus 
for  the  soda  fountain  apparatus  of  defendant  and  pay  defendant 
$2,205  in  addition,  and  signed  a  memorandum  in  relation  thereto, 
which,  however,  plaintiff  alleged  did  not  contain  all  the  terms  of 
the  contract;  that  the  exchange  was  made,  but  defendant's  soda 
fountain  apparatus,  instead  of  being  superior  in  value  by  $2,025, 
was,  as  matter  of  fact,  less  by  $2,500 ;  and  plaintiff  prayed  for  the 
cancelation  of  the  obligation  to  pay  $2,025,  for  $2,500  damages, 
and  for  general  relief.  The  original  petition  sought  damages 
merely,  and  in  the  sum  of  $1,500. 

On  application  of  defendant  the  cause  was  removed  to  the  Cir- 
cuit Court  of  the  United  States  for  the  Northern  District  of  Texas. 

The  case  was  entered  in  that  court  jNIay  12,  1902,  and  on  that 
day  the  defendant  filed  its  answer,  denying  all  charges  of  fraud. 
It  further  said  plaintiff  ought  to  take  nothing  by  his  suit,  and 
prayed  judgment  for  the  sura  of  $1,700,  and  foreclosure  of  a  mort- 
gage lien  which  it  had  on  the  soda  fountain  sold  to  the  plaintiff. 

Together  with  its  answer  defendant  filed  its  cross  complaint, 
setting  up  the  facts  in  detail  and  praying  for  judgment  in  the 
sum  of  $1,700,  and  interest,  and  for  a  decree  establishing  its  mort- 
gage lien  on  the  property  and  for  foreclosure  and  sale,  and  such 
further  relief  as  equity  might  require. 

1  See  3  Foster  Federal  Practice  (5th  Ed.)  pp.  2438-2439  for  various  cases 
exemplifyinof  this  doctrine. — Ed. 

WTieaton  C.  F.  P.— 5 


66  Cases  on  Federal  Procedure 

On  June  20,  1902,  the  original  bill  of  complaint  was  dismissed 
without  prejudice. 

July  24,  1902,  plaintiff,  as  defendant  in  the  cross  complaint, 
filed  his  plea  thereto,  in  which  he  averred  that  the  original  bill 
filed  by  him  had  been  dismissed,  and  that  the  cross  bill  was  not 
within  the  jurisdiction  of  the  court  because  the  amount  sought 
to  be  recovered  did  not  exceed  two  thousand  dollars,  exclusive 
of  interest  and  costs.  February  13,  1903,  the  plea  to  the  juris- 
diction of  the  court  was  argued  and  overruled,  and  plaintiff,  de- 
fendant in  the  cross  bill,  was  ordered  to  file  an  answ^er  to  said  cross 
bill  on  or  before  the  rule  day  of  the  court  occurring  in  April, 
1903.  No  further  answer  or  plea  to  the  cross  bill  having  been 
interposed  hy  the  defendant  therein,  a  decree  pro  confesso  was 
rendered  against  him  April  21. 

On  May  27,  1903,  the  court  rendered  a  decree  on  the  cross  bill, 
which  recited  the  various  proceedings,  found  the  allegations  of  the 
cross  complaint  and  exhibits  to  be  true;  that  Kirby  was  justly 
indebted  to  the  American  Soda  Fountain  Company  in  the  sum 
of  $1,700,  with  interest;  and  that  a  valid  mortgage  lien  to  secure 
that  sum  existed;  and  decreed  payment  of  the  amount  within 
sixty  days,  and  that,  if  not  paid,  the  property  should  be  sold  and 
the  proceeds  applied,  with  judgment  for  deficiency,  if  any. 

An  appeal  from  this  decree  was  prayed  and  allowed,  and  the 
question  of  jurisdiction  was  certified.  The  case  came  on  in  this 
court  on  motions  to  dismiss  or  affirm.^ 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the  court. 

The  contention  is  that  the  Circuit  Court  had  no  jurisdiction 
as  a  court  of  the  United  States  to  proceed  on  the  cross  bill  be- 
cause of  the  lack  of  the  prescribed  jurisdictional  amount.  But 
we  think  the  Circuit  Court  was  right  in  rejecting  this  contention 
and  in  overruling  the  plea. 

Ill  the  first  place,  the  whole  record  being  considered,  the  value 
of  the  matter  in  dispute  might  well  have  been  held  to  exceed  two 
thousand  dollars,  exclusive  of  interest  and  costs.  Stinson  v.  Dous- 
man,  20  How.  461,  466;  New  Enghmd  IMortgage  Company  v.  Gay, 
145  U.  S.  123,  131;  Shappirio  v.  (Joldberg,  192  U.  S.  232;  Lovell 
V.  Cragin,  136  U.  S.  130. 

1  The  facta  are  restated  and  only  u  portion  of  tlie  opitiiou  is  reprinted. — Ed. 


DiSTKicT  Courts  67 

In  Stinson  v.  Dousman  the  suit  was  brought  to  recover  some- 
thing less  than  five  hundred  dollars  as  rent  of  a  parcel  of  land 
under  a  written  contract  for  the  purchase  of  the  land  at  eight 
thousand  dollars,  which  provided  that  the  covenantee  should  pay 
rent  on  failure  to  comply  with  sundry  conditions  prescribed,  and 
defendant  not  only  set  up  in  his  answer  a  defense  to  the  claim  for 
rent,  but  also  sought  a  decree  affirming  the  contract  as  outstand- 
ing. It  was  objected  in  this  court  that  the  matter  in  dispute  was 
not  of  the  value  of  one  thousand  dollars,  and  that  therefore  there 
was  no  jurisdiction.  Mr.  Justice  Campbell  said:  "The  objection 
might  be  well  founded,  if  this  was  to  be  regarded  merely  as  an 
action  at  common  law.  But  the  equitable  as  well  as  the  legal  con- 
siderations involved  in  the  cause  are  to  be  considered.  The  effect 
of  the  judgment  is  to  adjust  the  legal  and  equitable  claims  of 
the  parties  to  the  subject  of  the  suit.  The  subject  of  the  suit  is 
not  merely  the  amount  of  rent  claimed,  but  the  title  of  the  re- 
spective parties  to  the  land  under  the  contract.  The  contract 
shows  that  the  matter  in  dispute  was  valued  by  the  parties  at 
$8,000.  We  think  this  court  has  jurisdiction.  The  case  is  cited 
and  considered  in  New  England  Mortgage  Company  v.  Gay  and 
in  Shappirio  v.  Goldberg. 

In  Lovell  v.  Cragin  it  was  held  as  correctly  stated  in  the  head- 
notes:  "When  the  matter  set  up  in  a  cross  bill  is  directly  re- 
sponsive to  the  averments  in  the  bill,  and  is  directly  connected 
with  the  transactions  which  are  set  up  in  the  bill  as  the  gravamen 
of  the  plaintiff's  case,  the  amount  claimed  in  the  cross  bill  may 
be  taken  into  consideration  in  determining  the  jurisdiction  of  this 
court  on  appeal  from  a  decree  on  the  bill." 

In  the  present  case  the  Circuit  Court  in  its  decree  referred  to 
the  plaintiff's  bill  and  the  relief  thereby  sought,  in  connection 
with  the  cross  bill,  and,  we  think,  was  justified  in  doing  this  as 
the  record  has  not  passed  from  under  its  control,  and  it  was  ap- 
parent that  the  decree  on  the  cross  bill  disposed  of  the  conten- 
tion of  plaintiff  in  respect  of  the  cancellation  of  the  contract. 
Taking  the  bill,  defendant 's  answer  and  the  cross  bill  together,  the 
jurisdictional  amount  was  made  out. 

In  the  second  place,  it  is  the  general  rule  that  when  the  juris- 
diction of  a  Circuit  Court  of  the  United  States  has  once  attached 
it  will  not  be  ousted  by  subsequent  change  in  the  conditions. 
Morgan  v.  Morgan,  2  Wheat.  290;  Clarke  v.  Mathewson,  12  Pet. 


68  Cases  on  Federal  Procedure 

164;  Kanouse  v.  Martin,  15  How.  198,  208;  Roberts  v.  Nelson,  8 
Blatchf.  74;  Cooke  v.  United  States,  2  Wall.  218. 

In  Morgan  v.  Morgan  it  was  laid  down  by  Chief  Justice 
Marshall  that  the  jurisdiction  of  the  Circuit  Court  having  once 
vested  between  citizens  of  diiferent  States,  could  not  be  divested 
by  a  change  of  domicil  of  one  of  the  parties,  and  his  removal  into 
the  same  State  as  the  adverse  party  pendente  lite.  This  was  so 
ruled  in  Clarke  v.  Mathewson  and  other  cases  there  cited. 

In  Kanouse  v.  Llartin,  after  petition  to  remove  had  been  filed 
and  bond  tendered,  the  State  court  allowed  the  plaintiff  to  re- 
duce the  matter  in  dispute  to  less  than  the  jurisdictional  amount, 
and  went  on  with  the  case.  This  was  necessarily  held  to  be  er- 
roneous, but  the  observations  of  Mr.  Justice  Curtis  show  that,  in 
his  opinion,  the  general  rule  to  which  we  have  referred  also  ap- 
plied, and  he  cites  Morgan  v.  IMorgan  and  Clarke  v.  Mathewson, 

In  Roberts  v.  Nelson  the  amount  claimed  was  reduced  after  the 
ease  had  been  removed,  and  Mr.  Justice  Blatchford,  then  District 
Judge,  held  that  the  jurisdiction  of  the  court  having  once  at- 
tached, no  subsequent  event  could  divest  it. 

In  Cooke  v.  United  States  Mr.  Chief  Justice  Chase  said  that  "ju- 
risdiction once  acquired,  cannot  be  taken  away  by  any  change  in 
the  value  of  the  subject  of  controversy." 

This  action,  when  brought  in  the  State  court,  was  an  action  to 
recover  $1,500  damages  for  deceit.  Defendant  demurred  to  and 
answered  the  original  petition.  Plaintiff  subsequently  filed  his 
amended  petition  seeking  to  be  relieved  of  the  obligation  to  pay 
$2,025,  and  damages  in  the  sum  of  $2,500.  The  matter  in  dispute 
having  thus  been  made  to  exceed  the  sum  or  value  of  two  thou- 
sand dollars,  exclusive  of  interest  and  costs,  defendant  presented 
his  petition  and  bond  for  removal,  and  the  cause  was  thereupon 
removed.  The  jurisdiction  thus  acquired  by  the  Circuit  Court 
was  not  divested  by  plaintiff's  subsequent  action. 

Decree  affirmed} 

1  A  plaintiff  cannot  confer  jurisdiction  on  a  federal  court  of  an  action  on 
account  for  the  jirice  of  goods  sold  l)y  ijj;norinp  in  his  jtetition  a  credit  to 
whii-h  the  def'^ulant  is  cntiMinl  on  the  acc(nint  hy  agreement  of  the  parties, 
t)io  rit,'lit  to  which  is  in  fact  nndisj)uted,  and  wliich,  if  allowed  reduces  the 
anionnt  in  controversy  helow  the  jurisdictional  amount.  Beilford  Quarries  Co. 
V.   Welch,    100   Fed.   hMi    (1900).  ' 

Compare  Rtillwnll-l'.iercd  &  Smith-Vailc  Co.  v.  Williamston  Oil  &  Fort.  Co., 
80  Fed.  r,H,  CU   (1897). 


District  Courts  69 

GREENE  COUNTY  BANK  v.  J.  H.  TEASDALE 
COMMISSION  CO. 

Circuit  Coxirt,  E.  D.  Missouri,  E.  D.    1902. 

112  Fed.  801. 

Adams,  District  Judge. — This  is  a  bill  for  a  discovery  and  an 
accounting.  The  complainant  charges,  in  substance,  that  it  is  a 
banking  corporation,  and  that  one  Ritter  is  its  cashier;  that  the 
defendant  is  a  commission  house  transacting  the  business  of  buy- 
ing and  selling  grain  and  other  commodities  for  customers,  and 
that  in  the  course  of  its  business  it  has  been  in  the  habit  of  per- 
mitting its  customers  to  put  up  "margins,"  as  it  is  called,  and 
thus  to  buy  and  sell  partially  on  credit,  in  lieu  of  paying  for  the 
grain  or  other  commodities  purchased  in  full.  The  complainant 
charges  that  beginning  with  the  year  of  1896,  and  ending  with 
the  year  1900,  its  cashier,  Ritter,  took  advantage  of  his  situation 
as  custodian  of  its  money,  and  used  the  same  for  the  purpose  of 
speculating  in  grain  with  the  defendant  commission  company; 
that  Ritter  so  used  its  money  to  the  extent  of  more  than  $2,000, 
the  exact  amount  of  which  the  complainant  did  not  know,  but 
believed  to  be  not  less  than  $15,000.  It  is  charged  in  the  bill  that 
defendant  commission  company  knew  that  Ritter  was  making 
use  of  complainant's  money  for  the  purpose  of  carrying  on  his 
speculations,  and  that  the  commission  company  received  from  time 
to  time  during  the  four  years  in  question  a  large  sum  of  money 
from  Ritter,  which  he  had  abstracted  from  complainant's  funds, 
and  which  the  defendant  knew  he  had  so  abstracted.  Complainant 
alleges  ignorance  as  to  the  exact  amount  so  employed  by  Ritter, 
and  submits  divers  interrogatories  in  the  bill  for  defendant's  offi- 
cers to  answer.  The  defendant  appears  and  files  a  plea  to  the 
jurisdiction,  alleging,  in  substance,  that  the  suit  does  not  involve 
a  controversy  amounting  to  $2,000,  exclusive  of  interest  and  costs. 
By  several  affidavits  made  by  the  officers  and  agents  of  defend- 
ant company  it  is  made  to  appear  that  Ritter  first  began  to  do 
business  with  defendant,  and  to  make  purchases  and  sales  of  grain 
through  defendant's  agency,  on  Decembej  8,  1899,  and  continued 
such  business  only  until  November  27,  1900 ;  that  the  total  amount 
of  all  business  transactions  between  Ritter  and  defendant  com- 
pany during  this  period  was  $1,715.56,  and  that  the  total  amount 
of  money  paid  by  Ritter  directly  or  indirectly  during  the  entire 


70  Cases  on  Federal  Procedure 

period,  covering  the  business  transactions  between  Ritter  and  the 
defendant,  Avas  onl}-  $1,094:.59;  therefore  that  under  no  circum- 
.stanees  could  there  be  a  recovery  of  over  $1,094.59.  On  the  fore- 
going showing  it  is  claimed  that  the  plea  to  the  jurisdiction  should 
be  sustained. 

I  think  this  plea  discloses  a  misconception  of  the  rule  govern- 
ing the  question  of  jurisdiction.  According  to  the  method  adopted 
by  defendant's  counsel,  it  would  be  competent  in  any  ease  for 
the  defendant  to  allege  in  a  plea  to  the  jurisdiction  that  the 
amount  claimed  hy  a  plaintiff  was  too  much,  and  then  proceed  to 
have  a  hearing  by  ex  parte  affidavits  touching  the  same;  and  on 
the  same  theory,  of  course,  defendant  might  challenge  the  juris- 
diction of  the  court  on  the  ground  that  nothing  was  due  the  plain- 
tiff, and  proceed  to  try  the  whole  case  by  ex  parte  affidavits.  This 
method  substitutes  the  trial  b}"  affidavit  for  the  ancient  and  well- 
established  method  of  taking  the  testimony  by  deposition  or  by 
an  examiner,  in  such  way  as  to  permit  searching  examination  and 
cross-examination  of  the  witnesses.  The  general  rule  is  that  the 
sum  demanded  in  the  declaration  or  bill  determines,  for  all  juris- 
dictional purposes,  the  amount  in  controversy.  Hilton  v.  Dickin- 
son, 108  U.  S.  165,  174,  2  Sup.  Ct.  424,  27  L.  Ed.  688.  This  is 
especially  true  in  all  actions  for  recovery  of  money  only,  like  the 
action  now  before  the  court.  The  amount  demanded  by  the  plain- 
tiff in  good  faith  is  the  test  of  jurisdiction,  so  far  as  that  is  de- 
pendent upon  the  amount  in  controversy.  In  Schunk  v.  Moline, 
Milbum  &  Stoddart  Co.,  147  U.  S.  500,  505,  13  Sup.  Ct.  416,  417, 
37  L.  Ed.  255,  it  is  said : 

"The  fact  of  a  valid  defense  to  a  cause  of  action,  although  ap- 
parent on  the  face  of  the  petition,  does  not  diminish  the  amount 
that  is  claimed,  nor  determine  what  is  the  matter  in  dispute;  for 
who  can  say  in  advance  that  that  defense  will  be  presented  by 
defendants,  or,  if  presented,  will  be  sustained  by  the  court?" 

From  the  foregoing  eases  the  rule  ai)pears  to  be  that  in  all  ac- 
tions for  the  recovery  of  monej^  the  amount  claimed  in  the  com- 
7)laint  in  good  faith  determines  the  jurisdiction  of  the  court,  so 
far  as  the  amount  in  controversy  may  be  involved.  There  is  a 
well-recognized  exception,  however,  to  this  rule,  where  it  appears 
from  the  complaint  that  the  amount  claimed  is  evidently  fictitious, 
and  alleged  for  the  purpose  simply  of  giving  color  to  jurisdiction, 
— in  other  words,  whore  tlie  plaintiff  obviously  is  by  allegation 
attempting  to  commit  a  Iriiud  upon  the  jurisdiction  of  the  court. 


District  Courts  71 

Cases  of  this  character  are  represented  by  the  following:  Bow- 
man V.  Railroad  Co.,  115  U.  S.  611,  6  Sup.  Ct.  192,  29  L.  Ed.  502; 
Bank  of  Arapahoe  v.  David  Bradley  &  Co.,  19  C.  C.  A.  206,  72 
Fed.  867,  and  cases  cited.  These  cases,  after  recognizing  the 
general  rule  that,  in  all  actions  for  the  recovery  of  money  only, 
the  amount  demanded  by  the  plaintiff  in  good  faith  determines 
the  jurisdiction,  also  recognize  as  exception, — that  where  the  claim 
asserted  in  the  complaint  is  manifestly  fictitious,  and  made  for 
the  purpose  of  imposing  upon  the  court  a  case  not  within  its  ju- 
risdiction, the  court  will  ignore  the  statement  of  the  claim  de- 
manded, and  summarily  put  an  end  to  the  fraud  attempted  to  be 
practiced  upon  its  jurisdiction.  It  is  manifest  from  the  aver- 
ments of  the  bill  in  this  case  that  there  is  no  such  evidence  of  bad 
faith  on  the  part  of  the  complainant  as  to  justify  the  court's 
intervention  to  protect  itself  from  fraudulent  imposition.  The 
cases  relied  upon  by  defendant's  counsel  are  not  inconsistent  with 
the  foregoing  rule.  They  are  not  for  the  recovery  of  money  only, 
but  are  cases  in  which  real  estate  or  some  specific  personal  prop- 
erty is  sought  to  be  recovered.  "Wetmore  v.  Rymer,  169  U.  S.  115, 
18  Sup.  Ct.  293,  42  L.  Ed.  682,  was  an  action  in  ejectment,  in 
which  the  court  laid  down  the  rule  that  a  trial  court  might  hear 
the  issue  as  to  the  amount  in  controversy  by  affidavits,  or  in  any 
other  manner  which  its  discretion  and  judgment  might  dictate. 
Carr  v.  Fife,  156  U.  S.  494,  15  Sup.  Ct.  427,  39  L.  Ed.  508,  was 
also  a  suit  relating  to  a  tract  of  land.  The  title  was  disputed, 
and  the  jurisdiction  depended  upon  the  value  of  the  land  itself. 
In  that  case  the  Supreme  Court  took  occasion,  at  the  outset  of 
its  comments  on  the  question  of  jurisdiction,  to  observe  that  "the 
suit  was  not  one  to  recover  a  sum  of  money."  Wilson  v.  Blair, 
119  U.  S.  387,  7  Sup.  Ct.  230,  30  L.  Ed.  441,  was  also  an  action 
for  the  possession  of  real  estate,  and  the  jurisdiction  depended 
upon  the  value  of  the  matter  in  controversy.  In  that  case  leave 
w^as  given  the  defendant  in  the  trial  court  to  file  affidavits  of  value, 
and  the  plaintiff  to  file  counter  affidavits;  and  the  court  took 
occasion  to  say  it  was  good  practice  to  settle  the  question  of  ju- 
risdiction in  that  way,  and,  "if  oftener  adopted,  would  save 
trouble"  to  parties  and  the  court.  That  case,  however,  was  not 
to  recover  a  particular  sum  of  money  alleged  to  be  due,  growing 
out  of  disputed  transactions,  but  to  recover  the  possession  of  real 
estate  susceptible  of  actual  valuation,  whereby  jurisdiction  could 
be  readily  determined.    Barry  v.  Edmunds,  116  U.  S.  550,  6  Sup. 


72  Cases  on  Federal  Procedure 

Ct.  501,  29  L.  Ed.  729,  was  an  action  for  the  malicious  seizure 
of  personal  property  for  the  payment  of  taxes  alleged  to  have 
been  unconstitutional.  The  value  of  the  property  seized  was  less 
than  $200,  but  the  plaintiff  alleged  that  the  action  of  the  officer 
in  seizing  the  same  was  malicious,  and  done  with  the  purpose  of 
injuring  the  plaintiff's  credit.  By  reason  thereof,  plaintiff  claimed 
vindictive  damages  in  the  sum  of  $6,000.  The  trial  court  had  dis- 
missed the  case  on  the  ground  that  the  complaint  showed  that  the 
matter  in  dispute  did  not  exceed,  exclusive  of  costs,  the  sum  or 
value  of  $500,  which  was  then  the  limit  of  jurisdiction.  The  Su- 
preme Court  disapproved  of  that  action  of  the  trial  court,  and  held 
that  the  amount  claimed  in  the  complaint  was  the  test  of  juris- 
diction. In  so  doing  the  court  enters  into  an  interesting  discus- 
sion of  what  would  be  a  colorable  demand,  and,  among  other 
things,  says: 

"It  is  true,  indeed,  that  in  some  cases  it  might  appear,  as  matter 
of  law,  from  the  nature  of  the  case  as  stated  in  the  pleadings,  that 
there  could  not  legally  be  a  judgment  recovered  for  the  amount 
necessary  to  the  jurisdiction,  notwithstanding  the  damages  were 
laid  in  the  declaration  at  a  larger  sum." 

This  doctrine  is  the  same  as  that  announced  by  the  Circuit 
Court  of  Appeals  of  the  Eighth  Circuit  in  the  case  of  Bank  of 
Arapahoe  v.  David  Bradley  &  Co.,  supra.  The  court  then  pro- 
ceeds to  quote  from  an  opinion  delivered  by  Chief  Justice  Ells- 
worth in  the  very  early  case  of  Wilson  v.  Daniel,  3  Dall.  401, 
407,  1  L.  Ed.  655,  as  follows : 

"The  nature  of  the  case  must  certainly  guide  the  judgment  of 
the  court,  and,  whenever  the  law  makes  a  rule,  that  rule  must  be 
pursued.  Thus,  in  an  action  of  debt  on  a  bond  for  $100,  the  prin- 
cipal and  interest  are  put  in  demand,  and  the  plaintiff  can  re- 
cover no  more,  though  he  may  lay  his  damages  at  $10,000.  The 
form  of  the  action,  therefore,  gives  in  that  case  the  legal  rule.  But 
in  an  action  of  trespass,  or  assault  and  battery,  where  the  law 
prescribed  no  limitation  as  to  the  amount  to  be  recovered,  and 
the  plaintiff  has  a  right  to  estimate  his  damages  at  any  sum,  the 
damage  stated  in  the  declaration  is  the  thing  jmt  in  demand,  and 
l)resents  the  only  criterion  to  which,  from  the  nature  of  the  action, 
we  can  resort  in  settling  Ihe  (jucstion  of  jnrisdiction.  The  propo- 
sition, then,  is  sinii)Iy  this:  WIum-c  IIic  law  gives  no  rule,  tiie  de- 
mand of  tlic  ])Iaintiff  must  fnrnish  one;  but,  where  the  law  gives 
tin*  rule,  tlic  legal  canse  of  ad  ion,  and  not  the  plaintiff's  demand, 
must  be  regarded." 


•♦ot . 


District  Courts  73 

The  court,  however,  modifies  the  rule  so  stated  by  Chief  Justice 
Ellsworth  by  declaring,  in  effect,  that  when  the  amount  of  dam- 
ages stated  in  the  declaration  is  colorable,  and  laid  beyond  the 
amount  of  a  reasonable  expectation  of  recovery  for  the  purpose 
of  creating  a  case  within  the  jurisdiction,  of  the  court,  no  juris- 
diction is  thereby  conferred.  The  case  of  Lee  v.  Watson,  1  "Wall, 
337,  17  L.  Ed.  557,  which  was  an  action  upon  a  money  demand, 
well  illustrates  what  is  meant  by  a  "colorable  demand,"  within 
the  purview  of  the  law  relating  to  jurisdiction.  Here  the  court 
says : 

"In  an  action  upon  a  money  demand,  where  the  general  issue 
is  pleaded,  tlie  matter  in  dispute  is  the  debt  claimed;  and  its 
amount,  as  stated  in  the  body  of  the  declaration,  and  not  merely 
the  damages  alleged,  or  the  prayer  for  judgment  at  its  conclusion, 
must  be  considered  in  determining  the  question  whether  this  court 
can  take  jurisdiction  on  a  writ  of  error  sued  out  by  the  plaintiff. 
It  certainly  would  not  be  pretended  that  this  court  would  hear  a' 
case  where  the  plaintiff  counted  solely  upon  a  promissory  note 
of  $200,  simply  because  he  concluded  his  declaration  with  an  aver- 
ment that  he  had  sustained  damages  from  its  nonpayment  of  over 
$2,000,  and  prayed  judgment  for  the  latter  sum.  *  *  *  The 
damages  or  prayer  for  judgment  must  be  regarded,  inasmuch  as 
the  plaintiff  may  seek  a  recovery  for  less  than  the  sum  to  which 
he  appears  entitled  by  the  allegations  in  the  body  of  the  declara- 
tion." 

In  the  light  of  the  foregoing  case,  I  think  the  rule  may  be  safely 
stated  that,  in  an  action  for  the  recovery  of  money  only,  the  amount 
of  damages  claimed  determines  the  jurisdiction  of  the  court,  unless 
the  declaration  upon  its  face  shows  that  the  sum  is  claimed  in 
bad  faith,  and  merely  for  the  purpose  of  imposing  a  colorable 
jurisdiction  upon  the  court.  In  other  eases  not  for  the  recovery 
of  money,  but  for  the  recovery  of  land  or  articles  of  specific  prop- 
erty, an  inquiry  may  be  made,  on  a  plea  to  the  jurisdiction,  by 
affidavit  or  other  convenient  method,  as  to  the  real  value  of  the 
subject  of  controversy.  The  case  now  before  the  court  clearly 
belongs  to  the  class  first  mentioned,  namely,  for  the  recovery  of 
money.  In  its  bill  the  complainant  alleges  that  it  is  certainly  en- 
titled to  recover  $2,000,  exclusive  of  interest  and  costs,  and  be- 
lieves it  is  entitled  to  recover  $15,000,  There  is  nothing  apparent 
on  the  face  of  the  bill  to  disclose,  as  a  matter  of  law,  that  com- 
plainant cannot  recover  $2,000  and  more,  or  bad  faith,  or  any 


74  Cases  on  Federal  Procedure 

purpose  to  impose  upon  the  court  a  jurisdiction  not  belonging 
to  it.  On  the  contrary,  there  is  every  evidence  of  perfect  good 
faith  to  recover  a  sum  of  money  necessarily  uncertain,  and  de- 
pendent upon  judicial  investigation  to  determine  its  amount.  Such 
being  the  case,  the  defendants  cannot  by  ex  parte  affidavits,  taken 
out  of  court,  conclude  the  whole  case  upon  its  merits,  on  a  plea 
to  the  jurisdiction. 

The  plea  must  be  adjudged  bad  and  overruled. 


EDWARDS  V.  BATES  COUNTY. 

Supreme  Court  of  the  United  States.    1896. 

163  U.  S.  269,  16  S.  Ct.  967,  41  L.  Ed.  155. 

On  October  5,  1891,  plaintiff  in  error  filed  his  petition  to  re- 
cover from  the  defendant  an  aggregate  alleged  indebtedness,  con- 
sisting of  the  following  items : 

1.  The  principal  of  two  bonds  for  one  thousand  dollars  each, 
issued  by  the  defendant  on  January  18,  1871,  with  interest  from 
the  date  of  maturity  of  the  bonds  (January  18,  1886)  ; 

2.  The  amount  of  interest  coupons  on  said  bonds,  due  and  pay- 
able on  the  eighteenth  day  of  January,  in  the  years  1873  and 
1886,  both  inclusive,  with  interest  from  the  maturity  of  each  cou- 
pon;  and,  i 

3.  The  principal  of  seven  funded  bonds  of  said  county,  each 
for  the  sum  of  one  hundred  dollars,  dated  October  1,  1885,  and 
payable  October  ],  1905.     *     *     * 

A  plea  to  tlie  jurisdiction  was  filed  on  behalf  of  the  defendant, 
based  upon  the  claim  that  the  matter  in  controversy,  exclusive  of 
interest  and  costs,  did  not  exceed  the  sum  or  value  of  fl;2,000. 

The  trial  court  sustained  tlie  plea,  and  dismissed  the  case  for 
want  of  jurisdiction.  55  Fed.  Rop.  436.  The  case  was  then  brought 
to  this  coui'j   by  writ  of  error.* 

Mr.  Justice  White,  after  stating  the  care,  delivered  the  opinion 

of    llic    COUll. 

lOiily  a  [i.'tit  of  tlin  f!i<ts  arc  rcjirintcd. — Ed. 


District  Courts  75 

We  are  solely  concerned  in  this  case  in  determining  whether 
or  not  the  Circuit  Court  possessed  jurisdiction  over  the  claim 
asserted  in  the  petition.    Act  of  March  3,  1891,  c.  517,  §  5. 

From  the  facts  heretofore  detailed  the  following  questions  arise : 

First,  Should  the  Circuit  Court  have  taken  into  consideration, 
for  the  purpose  of  ascertaining  the  adequacy  of  the  jurisdictional 
amount,  the  claim  of  plaintiff  upon  the  interest  coupons  attached 
to  the  two  one  thousand  dollar  bonds? 

Second.  Did  the  court  rightly  hold  that  the  amount  of  the 
claim  upon  the  funding  bonds  was  not  an  item  "in  dispute"  be- 
tween the  parties,  and  therefore  not  proper  to  be  taken  into  ac- 
count in  determining  whether  the  court  possessed  jurisdiction? 

As  to  the  first  point.  By  the  act  of  Congress  of  March  3,  1887, 
c.  373,  as  amended  August  13,  1888,  c.  866,  25  Stat.  434,  original 
jurisdiction  was  conferred  upon  Circuit  courts  of  the  United  States, 
"concurrent  with  the  courts  of  the  several  States,  of  all  suits  of 
a  civil  nature  at  common  law  or  in  equity,  *  *  *  i^  which 
there  shall  be  a  controversy  between  citizens  of  different  States 
in  which  the  matter  in  dispute  exceeds,  exclusive  of  interest  and 
costs,  the  sum  or  value  of  two  thousand  dollars." 

It  is  contended  that  an  indebtedness  for  the  face  amount  of 
coupons  is  an  indebtedness  for  "interest"  within  the  meaning  of 
the  statute. 

The  nature  of  a  coupon  was  thus  defined  in  Aurora  v.  West, 
7  Wall.  82,  where  this  court  said  (p.  105)  : 

"Coupons  are  written  contracts  for  the  payment  of  a  definite 
sum  of  money,  on  a  given  day,  and  being  drawn  and  executed  in 
a  form  and  mode  for  the  very  purpose  that  they  may  be  separated 
from  the  bonds,  it  is  held  that  they  are  negotiable,  and  that  a  suit 
may  be  maintained  on  them  without  the  necessity  of  producing 
the  bonds  to  which  they  were  attached." 

Each  matured  coupon  upon  a  negotiable  bond  is  a  separable 
promise,  distinct  from  the  promises  to  pay  the  bond  or  other  cou- 
pons, and  gives  rise  to  a  separate  cause  of  action.  Nesbit  v.  River- 
side Independent  District,  144  U.  S.  610.  In  that  case  this  court 
said  (p.  619)  : 

"Each  matured  coupon  is  a  separable  promise,  and  gives  rise 
to  a  separate  cause  of  action.  It  may  be  detached  from  the  bond 
and  sold  by  itself.  Indeed,  the  title  to  several  matured  coupons  of 
the  same  bond  may  be  in  as  many  different  persons,  and  upon 
each  a  distinct  and  separate  action  be  maintained.     So,  while  the 


76  Cases  on  Federal  Procedure 

promises  of  the  bond  and  of  the  coupons  in  the  first  instance  are 
upon  the  same  paper,  and  the  coupons  are  for  interest  due  upon 
the  bond,  yet  the  promise  to  pay  the  coupon  is  as  distinct  from 
that  to  pay  the  bond,  as  though  the  two  promises  were  placed  in 
different  instruments  upon  different  paper." 

Not  only  may  a  suit  be  maintained  upon  an  unpaid  coupon,  in 
advance  of  the  maturity  of  the  principal  debt,  but  the  holder  of 
a  coupon  is  entitled  to  recover  interest  thereon  from  its  maturity. 
Amy  V.  Dubuque,  98  U.  S.  470,  473.  The  logical  effect  of  these 
rulings  is  that  when  the  interest  evidenced  by  a  coupon  has  become 
due  and  payable  the  demand  based  upon  the  promise  contained 
in  such  coupon  is  no  longer  a  mere  incident  of  the  principal  in- 
debtedness represented  by  the  bond,  but  becomes  really  a  principal 
obligation.  Clearly,  such  would  be  the  nature  of  the  claim  of  one 
who  as  owner  of  the  coupons  and  not  of  the  bonds,  brought  his 
action  to  enforce  payment  of  the  indebtedness  evidenced  by  the 
coupons.  So,  also,  before  maturity  of  the  bonds,  their  holder  could 
still  have  sued  upon  the  matured  coupons  as  an  independent  in- 
debtedness, and  not  as  a  mere  accessory  to  a  demand  for  a  recovery 
of  the  face  of  the  bonds.  No  good  reason,  therefore,  exists  for 
creating  a  distinction  between  such  cases  and  the  ease  at  bar  in 
w^hich  there  is  coupled  with  the  demand  to  recover  upon  the  cou- 
pons a  demand  for  judgment  upon  the  bonds.  The  confusion  of 
thought  to  w'hich  we  alluded  in  the  case  of  Brown  v.  Webster, 
156  U.  S.  328,  is  also  involved  in  the  decision  below,  that  is,  the 
failure  to  distinguish  between  a  principal  and  accessory  demand. 
The  claim  made  by  the  plaintiff  on  the  coupons  was  in  no  just 
sense  accessory  to  any  other  demand,  but  was  in  itself  principal 
and  primary.  In  ascertaining,  therefore,  the  jurisdictional  sum 
in  dispute,  the  sum  of  the  coupons  should  have  been  treated  as 
an  independent,  principal  demand  and  not  as  interest ;  and  in 
holding  otherwise  the  lower  court  erred  to  the  prejudice  of  the 
j)hniiliff  in  error. 

As  the  face  of  the  bonds  amounted  to  the  sum  of  two  thousand 
(lolliiis,  the  addition  of  the  demand  based  upon  the  coupons  brought 
the  sum  in  dispute  witliin  the  jurisdiction  of  the  Circuit  Court. 
Tt  is,  therefore,  unnecessary  to  consider  whether  the  controversy 
as  to  th(!  funding  bonds  did  not  involve  a  real  matter  "in  dis- 
l)Ufc"  between  the  ])arties. 

The  judgment  is  reversed  and  the  cause  is  remanded  with  direc- 
tions to  set  aside  the  order  dismissing  the  action  for  want  of  ju- 
risdiction, .'Hid  foi-  iintlier  pi'oceedings  in  conformity  to  law. 


District  Courts  77 

SWOFFORD  V.  CORNUCOPIA  IMINES  OF  OREGON. 
Circuit  Court,  D.  Oregon.    1905. 
140  Fed.  957. 

Gilbert,  Circuit  Judge. — This  cause  was  removed  to  this  court 
from  the  Circuit  Court  of  the  State  of  Oregon  for  Baker  County. 
The  plaintiff  moves  to  remand,  on  the  ground  that  this  court  has 
no  jurisdiction  of  the  controversy.  The  petition  alleges  as  grounds 
for  removal  diversity  of  citizenship,  prejudice,  and  local  influence, 
and  the  fact  that  the  cause  presents  a  Federal  question,  in  that 
a  receiver  in  bankruptcj^  is  one  of  the  parties  defendant.  It  al- 
leges, also,  that  the  amount  in  controversy  exceeds  $2,000,  exclu- 
sive of  interest  and  costs.  The  cause  is  not  removable  under  any 
of  the  grounds  stated  in  the  petition,  unless  the  necessary  juris- 
dictional amount  in  controversy  clearly  appears.  Pierson  v. 
Philips  (C.  C),  36  Fed.  837;  Hallam  v.  Tillinghast  (C.  C),  75 
Fed.  849 ;  Ex  parte  Pennsylvania  Co.,  137  U.  S.  451,  11  Sup.  Ct. 
141,  34  L.  Ed.  738;  Black's  Dillon  on  Removal  of  Causes,  §48. 
A  trustee  or  a  receiver  in  bankruptcy  cannot  remove  a  cause  to 
this  court  unless  the  amount  involved  exceeds  $2,000.  Collier  on 
Bankruptcy  (4th  Ed.)  247,  and  cases  there  cited. 

The  complaint  is  brought  to  enforce  a  miner's  lien  under  sec- 
tion 5558,  B.  &  C.  Comp.  Or.  The  plaintiff  alleges  that  he  has 
perfected  two  such  liens  for  work  done  upon  the  Cornucopia  Mines 
of  Oregon,  the  aggregate  of  which  is  $1,905.50.  He  claims  in 
addition  thereto  attorney's  fees  in  the  amount  of  $750  under  sec- 
tion 5672,  B.  &  C.  Comp.  Or.,  which  contains  the  following  pro- 
vision : 

"In  all  suits  under  this  act  the  court  shall,  upon  entering  judg- 
ment for  the  plaintiff,  allow  as  part  of  the  costs  all  moneys  paid 
for  the  filing  and  recording  of  the  lien  and  also  a  reasonable 
amount  as  attorney's  fees." 

The  question  presented  is  whether  the  attorney's  fee  so  pro- 
vided for  as  costs  may  be  added  to  the  amount  of  the  liens,  so  as 
to  create  the  amount  in  controversy  which  is  necessary  to  give 
this  court  jurisdiction.  The  defendants  cite  and  rely  upon  Rogers 
V.  Riley  (C.  C),  80  Fed.  759,  in  which  it  was  held  that  where  by 
express  stipulation,  valid  in  tlie  state  where  made,  a  debtor  be- 
comes liable  for  reasonable  attorney's  fees  in  case  the  debt  is 
collected  by  suit,  such  fee  is  not  a  part  of  the  costs  which  are 
excluded  under  the  judiciary  act,  but  may  be  added  to  the  amount 


78  Cases  on  Federal  Procedure 

of  the  debt  for  the  purpose  of  making  up  the  jurisdictional  amount. 
This  was  held  expressly  upon  the  ground  that  the  obligation  to 
pay  a  reasonable  attorney's  fee  was  a  contractual  one,  and  was 
an  existing  liability  at  the  date  of  bringing  the  suit.  But  in  the 
present  case  there  was  no  such  contractual  liability  to  pay  at- 
torney's fees.  The  corporation  for  which  the  work  was  done  had 
not  promised  to  paj-  attorney's  fees.  The  obligation  is  purely 
statutory,  and  is  declared  by  the  statute  to  be  allowable  upon  enter- 
ing a  judgment  for  the  lien  claimant  as  a. part  of  the  costs.  In 
11  Cye.  105,  it  is  said : 

"In  jurisdictions  where  stipulations  for  the  payment  of  at- 
torne.y's  fees  are  considered  valid,  these  fees  are  taxable  as  costs." 

This  is  especially  true  in  jurisdiction  where  by  statute  it  is 
declared  that  attorney's  fees  shall  be  treated  as  part  of  the  costs, 
notwithstanding  that  the  obligation  to  pay  them  may  rest  in  the 
contract  of  the  parties.  Spiesberger  Bros.  v.  Thomas,  59  Iowa 
606,  13  N.  W.  745.  The  amount  in  controversy  in  the  present 
suit  is  therefore  the  sum  of  the  liens,  exclusive  of  attorney's  fees, 
and  is  not  sufficient  to  sustain  the  jurisdiction  of  the  court. 

The  motion  to  remand  is  allowed. 


LOUISVILLE  AND  NASHVILLE  RAILROAD  COMPANY 

V.  IMOTTLEY. 

Supreme  Court  of  the  United  States.    1908. 

211  U.  S.  149,  29  S.  Ct.  42,  53  L.  Ed.  126. 

Mr.  Justice  ]\Ioody,  after  making  the  foregoing  statement,  de- 
livered the  opinion  of  the  court. ^ 

1  Tlie  facts  are  omitted,  as  well  as  a  long  list  of  cases  found  at  the  close 
of  the   opinion. 

Where  it  afBrmatively  apiiears  from  the  allegations  of  a  bill  that  a  federal 
question  is  directly  involved,  it  is  not  essential  to  the  jurisdiction  of  a  federal 
court  that  diversity  of  citizenship  between  the  parties  should  also  appear. 
San  .Toa(juin  &  K.  R.  Canal  &  Irr.  (Jo.  v.  Stanislaus  County,  90  Fed.  516, 
.020  (1898). 

Facts  of  which  the  court  will  take  judicial  notice  need  not  be  alleged  to 
show  therir  is  a  federal  (luestion  involved.  North  American  Cold  Storage  Co. 
V.  City  of  Chicago,  l.-Sl    Fed.   120,   122    (1907). 

When  federal  jurisdiction  is  invoked  on  the  ground  that  federal  questions 
are  iiivcdved,  jurisdiction  depends  on  the  cjuc'stions  jiresented  by  the  })leadings 
and  not  on  the  ultimate  determination  thereof.  Portland  Ry.,  Light  &  Power 
Co,  V.  City  of  Portland,  210  Fed.  007,  609  (1914).  Merely  stating  that  a 
fi'deral  question  if  involved  is  insufficient.  Facts  must  be  averred  to  prove 
the  Htatemeiit.  Dowell  V.  Criswold,  7  Fed.  Cas.  No.  4,041,  p.  996,  997,  5 
.Sawyer  .".9,  40-41    (1877).— Ed. 


District  Courts  79 

Two  questions  of  law  were  raised  by  the  demurrer  to  the  bill, 
were  brought  here  by  appeal,  and  have  been  argued  before  us. 
They  are,  first,  whether  that  part  of  the  act  of  Congress  of  June  29, 
1906  (34  Stat.  584),  which  forbids  the  giving  of  free  passes  or 
the  collection  of  any  different  compensation  for  transportation 
of  passengers  than  that  specified  in  the  tariff  filed,  makes  it  un- 
lawful to  perform  a  contract  for  transportation  of  persons,  who 
in  good  faith,  before  the  passage  of  the  act,  had  accepted  such 
contract  in  satisfaction  of  a  valid  cause  of  action  against  the  rail- 
road; and,  second,  whether  the  statute,  if  it  should  be  construed 
to  render  such  a  contract  unlawful,  is  in  violation  of  the  Fifth 
Amendment  of  the  Constitution  of  the  United  States.  We  do  not 
deem  it  necessary,  however,  to  consider  either  of  these  questions, 
because,  in  our  opinion,  the  court  below  was  without  jurisdiction 
of  the  cause.  Neither  party  has  questioned  that  jurisdiction,  but 
it  is  the  duty  of  this  court  to  see  to  it  that  the  jurisdiction  of  the 
Circuit  Court,  which  is  defined  and  limited  by  statute,  is  not  ex- 
ceeded. This  duty  we  have  frequently  performed  of  our  own 
motion.  Mansfield,  etc.,  Railway  Company  v.  Swan,  111  U.  S. 
379,  382 ;  King  Bridge  Company  v.  Otoe  County,  120  U.  S.  225 ; 
Blacklock  v.  Small,  127  U.  S.  96,  105;  Cameron  v.  Hodges,  127 
U.  S.  322,  326 ;  Metcalf  v.  Watertown,  128  U.  S.  586,  587 ;  Con- 
tinental National  Bank  v.  Buford,  191  U.  S.  119. 

There  was  no  diversity  of  citizenship  and  it  is  not  and  cannot 
be  suggested  that  there  was  any  ground  of  jurisdiction,  except 
that  the  case  was  a  ''suit  *  *  *  arising  under  the  Consti- 
tution and  laws  of  the  United  States."  Act  of  August  13,  1888, 
c.  866,  25  Stat.  433,  434.  It  is  the  settled  interpretation  of  these 
words,  as  used  in  this  statute,  conferring  jurisdiction,  that  a  suit 
arises  under  the  Constitution  and  laws  of  the  United  States  only 
when  the  plaintiff's  statement  of  his  own  cause  of  action  shows 
that  it  is  based  upon  those  laws  or  that  Constitution,  It  is  not 
enough  that  the  plaintiff  alleges  some  anticipated  defense  to  his 
cause  of  action  and  asserts  that  the  defense  is  invalidated  by  some 
provision  of  the  Constitution  of  the  United  States.  Although 
such  allegations  show  that  very  likely,  in  the  course  of  the  litiga- 
tion, a  question  under  the  Constitution  would  arise,  they  do  not 
show  that  the  suit,  that  is,  the  plaintiff's  original  cause  of  action, 
arises  under  the  Constitution.  In  Tennessee  v.  Union  &  Planters' 
Bank,  152  U.  S.  454,  the  plaintiff,  the  State  of  Tennessee,  brought 
suit  in  the  Circuit  Court  of  the  United  States  to  recover  from  the 
defendant  certain  taxes  alleged  to  be  due  under  the  laws  of  the 


80  Cases  on  Federal  Procedure 

State.  The  plaintiff  alleged  that  the  defendant  claimed  an  im- 
munity from  the  taxation  by  virtue  of  its  charter,  and  that  there- 
fore the  tax  was  void,  because  in  violation  of  the  provision  of  the 
Constitution  of  the  United  States,  which  forbids  any  State  from 
passing  a  law  impairing*  the  obligation  of  contracts.  The  cause 
was  held  to  be  beyond  the  jurisdiction  of  the  Circuit  Court,  the 
court  saying,  by  Mr.  Justice  Gray  (p.  464),  "a  suggestion  of  one 
party,  that  the  other  will  or  may  set  up  a  claim  under  the  Con- 
stitution or  laws  of  the  United  States,  does  not  make  the  suit  one 
arising  under  that  Constitution  or  those  laws."  Again,  in  Boston 
&  ^Montana  Consolidated  Copper  &  Silver  Mining  Company  v. 
Montana  Ore  Purchasing  Company,  188  U.  S.  632,  the  plaintiff 
brought  suit  in  the  Circuit  Court  of  the  United  States  for  the 
conversion  of  copper  ore  and  for  an  injunction  against  its  con- 
tinuance. The  plaintiff  then  alleged,  for  the  purpose  of  showing 
jurisdiction,  in  substance,  that  the  defendant  would  set  up  in 
defense  certain  laws  of  the  United  States.  The  cause  was  held 
to  be  beyond  the  jurisdiction  of  the  Circuit  Court,  the  court  say- 
ing, by  Mr.  Justice  Peckham  (pp.  638,  639)  : 

' '  It  would  be  wholly  unnecessary  and  improper  in  order  to  prove 
complainant's  cause  of  action  to  go  into  any  matters  of  defence 
which  the  defendants  might  possibly  set  up  and  then  attempt  to 
reply  to  such  defence,  and  this,  if  possible,  to  show  that  a  Federal 
question  might  or  probably  would  arise  in  the  course  of  the  trial 
of  the  case.  To  allege  such  defence  and  then  make  an  answer  to 
it  before  the  defendant  has  the  opportunity  to  itself  plead  or 
prove  its  own  defence  is  inconsistent  with  any  known  rule  of  plead- 
ing so  far  as  we  are  aware,  and  is  improper. 

"The  rule  is  a  reasonable  and  just  one  that  the  complainant 
in  the  first  instance  shall  be  confined  to  a  statement  of  its  cause 
of  action,  leaving  to  the  defendant  to  set  up  in  his  answer  what 
his  defence  is  and,  if  anything  more  than  a  denial  of  complainant's 
cause  of  action,  imposing  upon  the  defendant  the  burden  of  proving 
.such  defence. 

"Conforming  itself  to  that  rule  the  complainant  would  not,  in 
the  assertion  or  proof  of  its  cause  of  action,  bring  up  a  single 
Federal  (lucstioii.  The  presentation  of  its  cause  of  action  would 
not  show  that  it  was  one  arising  under  tlic  (Constitution  or  laws 
of  the  United  States. 

"The  only  way  in  wliicb  it  might  be  clainiod  lliat  a  Federal 
question  was  presented  wonld  be  in  llie  eoiiiphiinant 's  statement 
of  whiit    the  defenee   of  dercndjints   wonid    lie   ;ind    eoniplninant's 


District  Courts  8] 

answer  to  such  defence.  Under  these  circumstances  the  case  is 
brought  within  the  rule  laid  down  in  Tennessee  v.  Union  Planters' 
Bank,  152  U.  S.  454.  That  case  has  been  cited  and  approved  many 
times  since,     *     *     *     " 

The  application  of  this  rule  to  the  case  at  bar  is  decisive  against 
the  jurisdiction  of  the  Circuit  Court. 
It  is  ordered  that  the 

Judgment  he  reversed  and  the  case  re- 
mitted to  the  Circuit  Court  with  in- 
striictions  to  dismiss  the  suit  for  want 
of  jurisdiction. 


ST.  PAUL,  M.  &  M.  KY.  CO.  v.  ST.  PAUL  &  N.  P.  R.  CO. 

Circuit  Court  of  Appeals,  Eighth  Circuit.     1895. 

68  Fed.  2,  15  C.  C.  A.  167. 

The  State  of  Minnesota  conferred  upon  the  St.  Paul  &  Pacific 
Railroad  Company,  the  interest  of  the  State  in  a  large  quantity 
of  land  granted  to  the  State  by  Congress,  in  aid  of  the  construc- 
tion of  a  railroad,  by  certain  acts  which  provided  that  the  title  to 
the  lands  should  only  be  acquired  as  the  road  adjacent  to  the 
particular  lands  was  completed.  By  subsequent  proceedings,  the 
St.  Paul  &  Pacific  Railroad  Company  was  practically  divided 
into  tM'o  corporations,  the  second  known  as  the  First  Division 
Company.  The  First  Division  Company  constructed  a  large  part 
of  the  road,  and  the  governor  of  the  State,  acting  in  his  official 
capacity  and  upon  the  supposition  that  such  lands  had  been  duly 
earned  by  the  First  Division  Company,  conveyed  large  quantities 
of  land  to  it,  including  some  land  beyond  the  furthest  point  to 
which  the  road  was  built.  The  deeds  were  duly  recorded  at  the 
times  when  they  were  made,  in  1866  and  1871,  and  the  First  Di- 
vision Company  sold  and  conveyed  large  amounts  of  the  lands 
covered  by  them.  The  St.  Paul  &  Pacific  Railroad  Company  hav- 
ing failed  to  construct  a  part  of  the  line,  the  legislature  of  Min- 
nesota, on  March  1,  1877,  passed  an  act  to  provide  for  its  com- 
pletion, forfeiting  the  grants  previously  held  by  the  St.  Paul  & 
Pacific  Railroad  Company  appertaining  to  the  uncompleted  portion 
of  the  line,  and  authorizing  any  corporation  organized  to  build 
a  railroad  in  the  State  to  acquire  the  right  to  complete  the  line, 
WTieaton  C.  F.  P.— 6 


82  Cases  ox  Federal  Procedure 

and  upon  so  doing,  and  complying  with  the  act,  to  be  invested 
with  the  rights,  lauds,  and  property  appertaining  to  the  portion 
of  the  road  it  should  complete,  and  formerly  held  by  or  belonging 
to  the  St.  Paul  &  Pacific  Railroad  Company.  This  act  contained 
provisions  for  reserving  part  of  the  lands  by  the  State,  to  pay 
claims  for  labor  and  materials  used  in  completing  the  road,  and 
excluding  any  corporation  which  should  take  advantage  of  it  from 
acquiring  title  to  any  land  in  the  grant  upon  which  any  settle- 
ment had  been  made  or  pre-emption  claim  filed.  It  did  not  appear 
that,  at  the  time  of  the  passage  of  this  act,  the  validity  of  the 
deeds  executed  by  the  governor  in  1866  and  1871  had  ever  been 
questioned.  The  complainant  corporation  complied  with  the  pro- 
visions of  the  act,  and  completed  the  road,  including  the  part 
beyond  the  point  at  which  the  First  Division  Company  stopped. 

The  question  involved  is  as  to  whether  or  not  the  complainant 
corporation  can  successfully  maintain  that  the  deeds  of  the  gov- 
ernor of  land  beyond  the  furthest  point  to  which  the  First  Di- 
vision Company's  road  was  built  were  intended  to  be  declared 
void  b}'  the  legislative  act  of  March  1,  1877,  so  that  the  complainant 
corporation  could  obtain  a  cancellation  of  them  as  clouds  upon 
its  title  and  compel  the  defendant  company  to  account  for  the 
proceeds  of  such  of  said  lands  embraced  in  said  deeds  as  it  had 
sold  and  conveyed  to  third  persons.^ 

Thayer,  Circuit  Judge,  after  stating  the  case,  delivered  the 
opinion  of  the  court. 

The  first  question  presented  for  consideration  is  one  of  juris- 
diction, and,  as  both  parties  to  the  suit  are  corporations  created 
by  and  existing  under  the  laws  of  the  State  of  Minnesota,  the 
decision  of  the  jurisdictional  question  turns  upon  the  inquiry 
whether  the  case  is  one  arising  under  the  laws  of  the  United  States. 
Since  the  recent  decisions  in  Tennessee  v.  Union  &  Planters'  Bank, 
152  U.  S.  454,  14  Sup.  Ct.  654;  Chappell  v.  Waterworth,  155  U. 
S.  102,  15  Sup.  Ct.  84;  and  Postal  Teh-grapli  Cable  Co.  v.  Ala- 
bama, 155  U.  S.  482,  15  Sup.  (^t.  194,— it  must  be  regarded  as 
settled  that  the  Circuit  ('ourt  of  the  United  States  cannot  enter- 
tain jurisdiction  of  a  case  as  one  ai'ising  under  the  Constitution, 
laws,  or  treaties  of  the  United  Slates,  wliethei-  such  suit  is  com- 
mrnccd  therein  oi'i^^'iiuilly,  or  is  hiouirhl  thoi'e  by  rcMuoval,  unless 
ihr   plaint  ilT's  coniphiininil   oi- >(h'chirati(in  shows  tiiat  it  is  a  case 

1  Tlir   f.T'tH  ;irc  rcHtnfrfl,  |.art  tlioroof  Ix'in;^  I'opiod   from   tlio  syllalxia. — Ed. 


District  Courts  83 

arising  under  the  Federal  Constitution  or  National  laws  or  treaties. 
And  even  under  the  Judiciary  Act  of  March  3,  1875  (18  Stat.  470, 
e.  137),  the  same  rule,  it  seems,  was  applicable  to  suits  originally 
brought  in  the  Circuit  Court ;  that  is  to  say,  under  that  act  the 
right  to  entertain  a  case  brought  therein  originally,  on  the  ground 
that  it  involved  a  Federal  question,  depended  upon  the  inquiry 
whether  the  plaintiff's  statement  of  his  cause  of  action  showed  the 
existence  of  a  Federal  question.  Tennessee  v.  Union  Planters' 
Bank,  supra;  JMetcalf  v.  Watertown,  128  U.  S.  586,  589,  9  Sup. 
Ct.  173.  The  necessary  result  of  this  doctrine  is  that,  when  a 
complaint  filed  in  the  Circuit  Court  of  the  United  States  discloses 
a  controversy  arising  under  Federal  laws,  the  jurisdiction  of  the 
court  will  not  be  defeated  by  any  defense  or  plea  that  the  de- 
fendant may  see  fit  to  make.  If  the  plaintiff's  right  to  sue  in  the 
National  courts  is  to  be  tested  solely  by  his  complaint  or  declara- 
tion, and  is  not  aided  by  any  plea  interposed  by  the  defendant, 
no  matter  how  clearly  the  latter  may  show  that  the  construction 
or  application  of  Federal  laws  is  involved,  then  it  follows  that,  if 
jurisdiction  is  fairly  disclosed  by  the  plaintiff's  statement  of  his 
own  cause  of  action,  it  cannot  be  defeated  by  an  answer  or  plea 
so  conceived  and  drawn  as  to  avoid  the  consideration  of  any  Fed- 
eral question  or  questions.  In  other  words,  as  was  said,  in  sub- 
stance, in  Osborn  v.  Bank,  9  Wheat.  738,  824,  the  right  of  the 
plaintiff  to  sue  does  not  depend  upon  the  defense  which  the  de- 
fendant may  choose  to  set  up,  because  the  right  to  sue  exists,  if 
at  all,  before  any  defense  is  made,  and  must  be  judged  exclu- 
sively as  of  the  date  of  the  filing  of  the  complaint,  on  the  state 
of  facts  therein  disclosed.  If,  on  the  face  of  the  complaint  or 
declaration,  the  ease  is  one  which  the  court  has  the  power  to  hear 
and  determine,  because  of  the  existence  of  a  Federal  question,  it 
has  the  right  to  decide  every  issue  that  may  subsequently  be  raised, 
and  whether  the  decision  of  the  case  ultimately  turns  on  a  ques- 
tion of  Federal,  local,  or  general  law  is  a  matter  that  in  no  wise 
affects  the  jurisdiction  of  the  court.  Mayor  v.  Cooper,  6  Wall. 
247;  Railroad  Co.  v.  Mississippi,  102  U.  S.  135,  141;  Tennessee 
V.  Davis,  100  U.  S.  257,  264 ;  Omaha  Horse  Railway  Co.  v.  Cable 
Tramway  Co.,  32  Fed.  727. 

In  the  light  of  these  principles,  we  proceed  to  inquire  whether 
any  question  of  a  Federal  character  is  presented  by  the  bill  of 
complaint  which  it  may  become  necessary  to  decide  in  disposing 
of  the  issues  involved  in  the  present  controversy.  In  the  consider- 
ation of  this  question  we  do  not  deem  it  essential  to  state  in  detail 


84  Cases  on  Federal  Procedure 

all  of  the  allegations  of  the  amended  hill,  on  which  the  case  ap- 
pears to  have  been  tried  and  decided.  It  will  suffice  to  say  in 
this  behalf  that  the  amended  complaint  set  forth  by  appropriate 
allegations  all  of  the  legislation,  both  State  and  National,  affect- 
ing the  land  grant  in  question,  and  all  of  the  facts  and  circum- 
stances pertaining  thereto,  which  we  have  already  recited  at  length 
in  the  foregoing  statement.  In  addition  to  such  averments,  the 
amended  bill  also  alleged,  in  substance,  that  the  lands  now  in  con- 
troversy, being  those  situated  north  of  Watab,  were  conveyed  by 
the  governor  of  the  State  of  Minnesota  to  the  First  Division  Com- 
pany before  the  line  of  the  road  along  which  they  specifically  lay 
in  place  w^as  completed  through  and  coterminous  therewith;  that 
the  road  abreast  of  which  the  disputed  lands  lie  was  constructed 
by  the  plaintiff  company,  and  not  by  the  First  Division  Company ; 
that  no  part  of  said  lands  ever  belonged  or  pertained  to  that  part 
of  the  branch  line  which  was  constructed  by  the  First  Division 
Compan}',  and  that,  in  executing  the  deeds  for  the  lands  in  con- 
troversy to  the  First  Division  Company,  the  governor  of  the  State 
acted  "wrongfully  and  without  authority  of  law,"  and  that  the 
deeds  so  executed  were  "contrary  to  law,  and  void."  The  bill 
further  averred  that  the  plaintiff  company  was  the  owner  of,  and 
that  it  laid  claim  to,  all  the  lands  in  dispute;  and  that  the  de- 
fendant company  had  no  interest  therein  or  right  thereto;  and  it 
contained  a  prayer  that  the  plaintiff  company  be  decreed  to  be  the 
owner  of  said  lands,  and  that  the  deeds  executed  by  the  governor 
l)e  adjudged  to  be  null  and  void,  and  that  the  same  be  canceled 
as  a  cloud  upon  its  title.  In  all  of  its  essential  features,  there- 
fore, the  case  made  by  the  amended  complaint  was  a  suit  to  remove 
a  cloud  and  to  quiet  title.  It  does  not  follow,  however,  that  the 
case  at  bar  is  one  of  Federal  cognizance  because  it  contains  a 
i-eference  to  numerous  acts  of  Congress,  and  lengthly  extracts 
therefrom.  A  case  which  in  fact  depends  for  its  decision  upon 
(juestious  of  local  or  general  law  cannot  be  brought  within  the 
.jurisdiclion  of  a  Fedci-al  tribunal  as  one  arising  under  the  Con- 
st it  iil  ion  and  laws  of  the  United  States  merely  by  a  reference  in 
the  complaint  or  declaration  to  some  Federal  statute  or  statutes, 
and  l)y  setting  up  a  claim  thereunder  which  is  merely  colorable, 
and  ()l)vion.sly  w  itliont  any  icasonahle  foundation.  If  such  a  prac- 
tice was  tolerated,  the  I'esull  wotdd  be  that  the  jui'isdiction  of  the 
Federal  courts  would  he  unduly  eidarged,  and  made  to  compre- 
hend a  class  of  cases  which  wefc  nev<T  intended  to  he  tried  tlierein. 
New  Orleans  v.  New  Orh-ans  Water  Works,  142  U.  S.  79,  12  Sup. 


District  Courts  85 

Ct.  142;  Haml)lin  v.  Land  Co.,  147  U.  S.  532,  13  Sup.  Ct.  353; 
St.  Louis,  etc.,  Ry.  Co.  v.  State  of  Missouri,  15  Sup.  Ct.  443. 

At  this  point  it  accordingly  becomes  necessary  to  examine  the 
various  grounds  upon  which  the  plaintiff  company  predicates  its 
right  to  recover.  It  is  obvious  that  it  derives  its  right  to  sue  solely 
from  the  act  passed  by  the  legislature  of  the  State  of  Minnesota 
on  March  1,  1877,  the  material  provisions  of  which  act  have  been 
embodied  in  the  foregoing  statement.  In  the  absence  of  that 
enactment,  the  plaintiff  company  would  have  no  standing  in  any 
court,  State  or  Federal,  to  challenge  the  defendant's  title  to  the 
lands  in  controversy,  whether  the  deeds  conveying  the  same  are 
valid  or  invalid,  void  or  voidable.  The  first  question,  then,  that 
is  encountered  in  the  case  is  whether,  by  the  act  last  aforesaid, 
the  legislature  of  the  State  in  fact  intended  to  transfer  the  lands 
north  of  Watab,  which  had  theretofore  been  deeded  by  the  gov- 
ernor of  the  State  to  the  First  Division  Company,  to  such  other 
railroad  company  as  might  construct  the  uncompleted  line  of  road 
from  "Watab  to  Brainerd,  and  whether,  if  it  did  so  intend,  the 
language  of  the  act  was  adequate  to  vest  in  such  company  as  elected 
to  complete  the  road  a  legal  title  to  such  lands  north  of  Watab 
and  within  the  limits  of  the  grant  as  the  State  then  had  power  to 
convey.  With  respect  to  this  question,  a  controversy  arises  be- 
tween the  two  companies.  It  is  the  primary  issue  in  the  case. 
And  it  must  be  conceded,  we  think,  that  this  controversy  between 
the  parties  raises  a  question  of  local  law  which  is  in  no  wise  depend- 
ent for  its  decision  upon  the  construction  of  any  Federal  statute. 
But  if  this  primary  question  is  decided  in  the  affirmative,  as  the 
plaintiff  contends  that  it  ought  to  be,  such  decision  is  not  decisive 
of  the  plaintiff's  right  to  recover.  It  is  merely  one  step  in  the 
direction  of  a  recovery,  and,  for  that  reason,  it  cannot  be  said  that 
the  plaintiff's  cause  of  action  is  founded  solely  on  a  State  law,  and 
that  it  grows  out  of  thq  act  of  March  1,  1877.  To  entitle  the 
plaintiff  to  a  decree,  it  must  further  show  that  the  deeds  executed 
by  the  governor  covering  lands  north  of  Watab  were  invalid ; 
that  the  title  of  the  State  to  said  lands  was  not  divested  by  the 
execution  of  said  deeds,  and  that  on  March  1,  1877,  the  legis- 
lature of  the  State  still  had  power  to  convey  said  lands  by  leg- 
islative enactment  of  such  company  as  might  elect  to  construct 
the  uncompleted  line  from  Watab  to  Brainerd.  It  is  apparent, 
we  think,  that  the  plaintiff  endeavors  to  establish  the  foregoing 
proposition  that  the  deeds  were  in  fact  void,  and  that  the  lands 
in  controversy  remained  subject  to  the  disposal  of  the  State  of 


86  Cases  on  Federal  Procedure 

Minnesota,  because  of  the  invalidity  of  the  prior  conveyances,  on 
two  grounds.  In  the  first  place,  it  insists  that  the  Litchfield  agree- 
ment of  date  February  6,  1864,  which  was  subsequently  approved 
and  confirmed  by  the  State,  operated  as  a  division  of  the  land  grant 
pertaining  to  the  branch  line,  so  that  neither  Litchfield  nor  his 
successor  in  interest,  the  First  Division  Company,  could  there- 
after acquire  any  right  or  title  whatsoever  to  any  lands  pertain- 
ing to  said  grant  lying  north  of  AVatab,  whether  they  were  located 
within  the  place  or  indemnity  limits.  This,  without  doubt,  is  the 
ground  on  which  the  plaintiff  chiefly  relies  for  the  purpose  of 
establishing  the  proposition  that  the  governor  acted  wholly  with- 
out authority  in  executing  deeds  in  favor  of  the  First  Division 
Company  for  the  lands  now  in  controversy.  But,  in  addition  to 
such  contention,  plaintiff  also  insists,  and  the  allegations  of  the  bill 
seem  to  be  sufficiently  full  and  specific  to  furnish  a  foundation 
for  such  contention,  that  the  deeds  in  question  were  also  unauthor- 
ized and  void  by  virtue  of  limitations  and  conditions  found  in  the 
several  acts  of  Congress  by  which  the  lands  in  controversy  were 
granted  to  the  territory  and  State  of  Minnesota,  in  trust,  to  aid  in 
the  construction  of  a  branch  line  of  road  from  St.  Anthony,  via 
Anoka,  St.  Cloud,  and  Crow  Wing,  to  St.  Vincent.  In  support  of 
this  position,  it  is  contended,  in  substance,  that  the  state  held  the 
legal  title  to  all  the  lands  embraced  in  the  grant  in  trust,  and  that 
it  could  only  convey  the  same  on  the  conditions  prescribed  in  the 
several  acts  of  Congress  which  created  the  trust ;  that,  upon  a 
true  construction  of  the  grant,  the  State  had  no  power  to  convey 
lands  lying  within  place  limits,  in  advance  of  construction,  after 
the  first  120  sections  had  been  sold;  that  it  had  no  power  to  con- 
vey lands  to  any  railway  company  unless  the  tracts  so  conveyed 
were  "included  within  a  continuous  length  of  twenty  miles  of 
road;"  that  the  granting  act  of  March  3,  1857,  set  apart  and  ap- 
propriated to  the  construction  of  each  consecutive  section  of  20 
miles  of  road  the  place  lands  lying  abreast  of  or  coterminous  with 
each  section,  and  that  the  granting  act  of  March  3,  1865,  in  like 
manner  set  apart  and  appropriated  to  the  construction  of  each 
consecutive  section  of  10  miles  of  road  enough  place  and  indemnity 
lands  coterminous  therewith  to  make  altogether  100  sections  of 
land  for  each  10  miles  of  road.  It  is  insisted  that  the  deeds  now 
in  controversy  are  invalid,  without  reference  to  State  legislation, 
because  they  were  executed  by  tiie  governor  of  the  State  in  viola- 
tion of  each  of  the  foregoing  provisions  claimed  to  have  been  con- 
tained in  said  acts  of  Congress. 


District  Courts  87 

The  ground  first  stated,  on  which  the  plaintiff  company  bases 
its  claim  that  the  deeds  executed  by  the  Governor  were  invalid, 
does  not  involve  the  consideration  or  decision  of  any  Federal 
question.  In  construing  the  Litchfield  agreement,  and  in  deter- 
mining what  lands  the  St.  Paul  &  Pacific  Railroad  Company  in- 
tended by  that  contract  to  transfer  to  Litchfield  and  his  associates, 
it  might  be  found  expedient,  or  even  necessary,  to  consult  the  act 
of  Congress  of  March  3,  1857,  which  is  referred  to  therein,  and 
wdth  reference  to  which  the  contract  appears  to  have  been  execut- 
ed. But,  after  all,  the  point  at  issue  upon  this  branch  of  the  case 
is  the  true  construction  of  that  agreement,  and  that  is  clearly  a 
question  of  general  and  local  law,  inasmuch  as  the  right  asserted 
by  the  plaintiff  depends  upon  the  agreement,  and  the  local  statute 
by  which  it  was  adopted  and  confirmed.  A  case  does  not  become 
one  of  Federal  cognizance  because  it  may  be  found  necessary,  in 
construing  a  private  contract  or  a  local  law  from  which  the  rights 
of  the  respective  parties  are  derived,  to  consult  some  Federal 
statute  with  a  view  of  ascertaining  the  meaning  of  the  contract  or 
the  scope  and  effect  of  the  local  law.  In  such  cases  the  cause  of 
action  or  the  defense,  as  the  case  may  be,  is  not  founded  on  a  law 
of  the  United  States  in  any  such  sense  as  to  bring  the  suit  within 
the  jurisdiction  of  the  Federal  courts.  Miller's  Ex'rs  v.  Swann, 
150  U.  S.  132,  14  Sup.  Ct.  52.  It  is  equally  clear,  however,  that 
in  so  far  as  the  plaintiff  company  challenges  the  validity  of  the 
deeds  on  the  second  ground  above  stated,  because  they  were  exe- 
cuted in  violation  of  the  provisions  of  the  several  granting  acts 
heretofore  mentioned,  the  case  at  bar  does  involve  certain  Federal 
questions  which  it  might  be  found  necessary  to  decide,  and  on  the 
decision  of  which  the  right  of  the  plaintiff  to  recover  would  depend. 
If  the  plaintiff  company  fails  to  maintain  its  position  that  the 
Litchfield  agreement,  as  confirmed  by  State  legislation,  operated 
to  divide  the  grant  and  to  withdraw  the  lands  north  of  Watab 
from  the  reach  of  the  First  Division  Company,  or  that  the  deeds 
in  question  were  executed  in  violation  of  other  State  laws,  then 
it  seems  obvious  that  the  court  would  find  itself  compelled  to  con- 
sider the  Federal  questions  above  suggested, — whether  the  deeds 
were  rightfully  executed  under  Federal  laws,  and  operated  to  divest 
the  State  of  its  title  to  aU  or  any  of  the  lands  therein  descnbed 
which  lie  north  of  Watab.  It  is  proper  to  observe  in  this  connec- 
tion that  we  are  not  concerned  at  present  with  the  merits  of  the 
several  propositions  heretofore  stated  on  which  the  plaintiff  bases 
its  claim  that  the  deeds  executed  by  the  Governor  were  void,  and 


88  Cases  on  Federal  Procedure 

conveyed  no  title  to  the  lands  situated  north  of  Watab.  Whether 
the  construction  that  is  placed  on  the  granting  acts  by  the  plain- 
tiff company  with  a  view  of  impeaching  the  conveyances  is  sound 
or  unsound,  we  need  not  stop  at  this  point  to  inquire,  because  the 
jurisdiction  of  the  Circuit  Court  does  not  depend  on  that  inquiry. 
If  it  appears,  in  any  aspect  which  the  case  may  assume,  that  the 
right  of  recovery  may  depend  upon  a  construction  of  those  acts, 
and  if  the  right  to  recover  so  far  as  it  turns  on  the  construction 
of  Federal  statutes  is  not  merely  a  colorable  claim,  but  rests  upon 
a  reasonable  foundation,  then  a  Federal  question  is  involved  which 
is  adequate  to  confer  jurisdiction.  We  entertain  no  doubt  that 
certain  provisions  contained  in  the  several  acts  of  Congress  rela- 
tive to  the  disposal  of  the  lands  by  the  State  and  territorj^  of  Min- 
nesota are  of  such  a  nature  as  to  afford  a  reasonable  ground  for 
the  contention  that  the  lands  in  controversy  were  not  conveyed 
by  the  Governor  of  the  State  in  conformity  therewith,  and  that  the 
deeds  were  for  that  reason  voidable,  if  not  void.  We  think  that 
the  plaintiff  company  may  fairly  invoke  a  construction  of  these 
statutes,  and  that  the  allegations  of  the  bill  are  sufficient  for  that 
purpose.  Nor  is  it  at  all  material,  that  the  court  may  not  be 
compelled  to  construe  the  acts  of  Congress  in  the  respects  stated, 
or  in  any  o^her,  for,  as  we  have  already  shown,  its  jurisdiction  does 
not  depend  upon  the  nature  of  the  question  that  is  ultimately 
decisive  of  the  plaintiff's  right  to  recover.  If  a  case  is  commenced 
originally  in  the  Circuit  Court,  and,  by  a  fair  construction  of  the 
complaint,  it  appears  that  the  plaintiff  predicates  his  right  to 
relief  on  the  meaning  or  effect  of  a  law  of  the  United  States,  and 
the  claim  is  made  in  good  faith,  so  that  there  is  a  real  instead 
of  a  merely  colorable  controversy,  then  jurisdiction  over  the  case 
exists,  even  tliougli  it  nuiy  appear  that  the  right  to  the  same  relief 
is  asserted  on  another  ground,  that  does  not  involve  the  consider- 
ation of  a  P>dci-al  (luestion.  In  concluding  the  discussion  on  this 
branch  of  the  case,  it  is  proper  to  add  that  we  do  not  concur  in 
the  view  that  the  case  is  one  of  Federal  cognizance  merely  because 
the  title  to  tlie  lands  in  controversy  is  derived  from  the  United 
States.  The  bill  shows  very  conclusively  that  l)oth  parties  claim 
unflcr  the  State  of  .Minnesota,  that  the  title  to  the  State  is  not 
challenged,  but  is  conceded  to  be  well  founded  under  the  granting 
acts.  The  questions  at  issue  all  ^low  out  of  the  manner  in  which 
the  Stjite  dealt  with  tlie  lands  after  it  acquired  the  same  from 
the  genersil  (iovernnient.  Nor  is  the  case  one  in  which  the  parties 
arc    asserting    rights    derived    respectively    from    conflicting   land 


District  Courts  89 

grants.  Under  these  circumstances  it  must  be  conceded,  we  think, 
in  accordance  with  the  decision  in  Romie  v.  Casanova,  91  U.  S. 
379,  that  a  Federal  question  is  not  involved  in  the  case  merely 
because  the  United  States  is  the  ultimate  source  of  title.  The 
jurisdiction  of  the  court  must  be  upheld,  however,  on  the  ground 
heretofore  stated.^ 


HANS  v.  LOUISIANA. 

,  Supreme  Court  of  the  United  States.    1890. 

134  V.  S.  1,  10  8.  Ct.  504,  33  L.  Ed.  842. 

Mr.  Justice  Bradley,  after  stating  the  case,  delivered  the  opin- 
ion of  the  court. 

The  question  is  presented,  whether  a  State  can  be  sued  in  a 
Circuit  Court  of  the  United  States  by  one  of  its  own  citizens  upon 
a  suggestion  that  the  case  is  one  that  arises  under  the  Constitution 
or  laws  of  the  United  States. 

The  ground  taken  is,  that  under  the  Constitution,  as  well  as 
under  the  act  of  Congress  passed  to  carry  it  into  effect,  a  case  is 
within  the  jurisdiction  of  the  Federal  courts,  without  regard  to 
the  character  of  the  parties,  if  it  arises  under  the  Constitution  or 
laws  of  the  United  States,  or,  which  is  the  same  thing,  if  it  neces- 
sarily involves  a  question  under  said  Constitution  or  laws.  The 
l^^guage  relied  on  is  that  clause  of  the  3d  article  of  the  Consti- 
tution, which  declares  that  "the  judicial  power  of  the  United 
States  shall  extend  to  all  cases  in  law  and  equity  arising  under 
this  Constitution,  the  laws  of  the  United  States,  and  treaties  made, 
or  which  shall  be  made,  under  their  authority;"  and  the  corre- 
sponding clause  of  the  act  conferring  jurisdiction  upon  the  Cir- 

2  Only  that  part  of  the  opinion  dealing  with  the  jurisdiction  of  the  federal 
court  is  reprinted. 

In  MeChord  v.  Railway  Co.,  183  U.  S.  48.3,  22  Sup.  Ct.  165,  46  L.  ed.  289 
(1902),  the  court  said  the  case  must  be  one  "actually  and  not  potentially 
arising  under  the  constitution.  Jurisdiction  cannot  be  invoked  for  threatened 
legislative  action,  or  to  interfere  in  any  manner  with  the  adoption  of  such 
action  by  state  or  city." 

For  a  list  of  eases  in  which  it  was  determined  whether  or  not  a  federal 
question  was  involved,  see  1  Foster  Federal  Practice  (5th  Ed.)  pp.  58-60. 

See  also  Nueces  Valley  Town-Site  Co.  v.  M'Adoo,  257  Fed.  14.3,  146  (1919)  ; 
State  of  Ohio  v.  Cox,  257  Fed.  335,  336-338,  343  (1919)  ;  Wayne  v.  Venable, 
260  Fed.  64,  66  (1919).— Ed. 


90  Cases  on  Federal  Procedure 

cuit  Court,  which,  as  found  in  the  Act  of  March  3,  1875,  18  Stat. 
470,  c.  137,  §  1,  is  as  follows,  to  wit:  ''That  the  Circuit  Courts  of 
the  United  States  shall  have  original  cognizance,  concurrent  with 
the  courts  of  the  several  States,  of  all  suits  of  a  civil  nature  at 
common  law  or  in  equity,  *  *  *  arising  under  the  Constitu- 
tion or  laws  of  the  United  States,  or  treaties  made,  or  which  shall 
be  made,  under  their  authority."  It  is  said  that  these  jurisdic- 
tional clauses  make  no  exception  arising  from  the  character  of  the 
parties,  and,  therefore,  that  a  State  can  claim  no  exemption  from 
suit,  if  the  case  is  really  one  arising  under  the  Constitution,  laws 
or  treaties  of  the  United  States.  It  is  conceded  that  where  the 
jurisdiction  depends  alone  upon  the  character  of  the  parties,  a 
controversy  between  a  State  and  its  own  citizens  is  not  embraced 
within  it;  but  it  is  contended  that  though  jurisdiction  does  not 
exist  on  that  ground,  it  nevertheless  does  exist  if  the  case  itself 
is  one  necessarily  involves  a  Federal  question;  and  with  regard 
to  ordinary  parties  this  is  undoubtedly  true.  The  question  now 
to  be  decided  is,  whether  it  is  true  where  one  of  the  parties  is 
a  State,  and  is  sued  as  a  defendant  by  one  of  its  own  citizens. 

That  a  State  cannot  be  sued  by  a  citizen  of  another  State,  or  of 
a  foreign  State,  on  the  mere  ground  that  the  case  is  one  arising 
under  the  Constitution  or  laws  of  the  United  States,  is  clearly  estab- 
lished by  the  decisions  of  this  court  in  several  recent  cases.  Louis- 
iana V.  Jumel,  107  U.  S.  711 ;  Hagood  v.  Southern,  117  U.  S.  52 ; 
In  re  Ayers,  123  U.  S.  443.  Those  were  cases  arising  under  the 
Constitution  of  the  United  States,  upon  laws  complained  of  as  im- 
pairing the  obligation  of  contracts,  one  of  which  was  the  consti- 
tutional amendment  of  Louisiana  complained  of  in  the  present 
case.  Relief  was  sought  against  State  officers  who  professed  to 
act  in  obedience  to  those  laws.  This  court  held  that  suits  were 
virtually  against  the  States  themselves  and  were  consequently  vio- 
lative of  the  Eleventh  Amendment  of  the  Constitution,  and  could 
not  be  maintained.  It  was  not  denied  that  they  presented  cases 
arising  under  the  Constitution;  but,  notwithstanding  that,  they 
were  held  to  be  prohibited  by  the  amendment  referred  to. 

In  the  present  case  the  plaintiff  in  error  contends  that  he,  being 
a  citizen  of  Louisiana,  is  not  embarrassed  by  the  obstacle  of  the 
Eleventh  Ameiidtnent,  inasmuch  as  that  amendment  only  pro- 
hibits suits  against  a  State  which  are  brouglit  by  the  citizens  of 
another  State,  or  by  citizens  or  subjects  of  a  foreign  State.  It  is 
true,  the  aniciidincnt  does  so  read;  and  if  there  were  no  other  rea- 
son or  ground  lor  abating  his  suit,  it  might  be  maintainable;  and 


District  Courts  91 

then  we  should  have  this  anomalous  result,  that  in  cases  arising 
under  the  Constitution  or  laws  of  the  United  States,  a  State  may  be 
sued  in  the  Federal  courts  by  its  own  citizens,  though  it  cannot 
be  sued  for  a  like  cause  of  action  by  the  citizens  of  other  States, 
or  of  a  foreign  State ;  and  may  be  thus  sued  in  the  Federal  courts, 
although  not  allowing  itself  to  be  sued  in  its  own  courts.  If  this 
is  the  necessary  consequence  of  the  language  of  the  Constitution 
and  the  law,  the  result  is  no  less  startling  and  unexpected  than 
was  the  original  decision  of  this  court,  that  under  the  language  of 
the  Constitution  and  of  the  Judiciary  Act  of  1789,  a  State  was  liable 
to  be  sued  by  a  citizen  of  another  State,  or  of  a  foreign  country. 
That  decision  was  made  in  the  case  of  Chisholm  v.  Georgia,  2. 
Dall.  419,  and  created  such  a  shock  of  surprise  throughout  the 
country  that,  at  the  first  meeting  of  Congress  thereafter,  the 
Eleventh  Amendment  to  the  Constitution  was  almost  unanimously 
proposed,  and  was  in  due  course  adopted  by  the  legislatures  of 
the  States.  This  amendment,  expressing  the  will  of  the  ultimatt^ 
sovereignty  of  the  whole  country,  superior  to  all  legislatures  and 
all  courts,  actually  reversed  the  decision  of  the  Supreme  Court. 
It  did  not  in  terms  prohibit  suits  by  individuals  against  the  States, 
but  declared  that  the  Constitution  should  not  be  construed  to 
import  any  power  to  authorize  the  bringing  of  such  suits.  The  lan- 
guage of  the  amendment  is  that  ''the  judicial  power  of  the  United 
States  shall  not  be  construed  to  extend  to  any  suit  in  law  or  equity, 
commenced  or  prosecuted  against  one  of  the  United  States  by  citi- 
zens of  another  State  or  by  citizens  or  subjects  of  any  foreign 
State."  The  Supreme  Court  had  construed  the  judicial  power 
as  extending  to  such  a  suit,  and  its  decision  was  thus  overruled. 
The  court  itself  so  understood  the  effect  of  the  amendment,  for, 
after  its  adoption.  Attorney  General  Lee,  in  the  case  of  Hollings- 
worth  V.  Virginia,  3  Dall.  378,  submitted  this  question  to  the 
court,  ''whether  the  amendment  did,  or  did  not,  supersede  all 
suits  depending,  as  well  as  prevent  the  institution  of  new  suits, 
against  any  one  of  the  United  States,  by  citizens  of  another  State  ? ' ' 
Eilghman  and  Rawle  argued  in  the  negative,  contending  that  the 
jurisdiction  of  the  court  was  unimpaired  in  relation  to  all  suits 
instituted  previously  to  the  adoption  of  the  amendment.  But, 
on  the  succeeding  day,  the  court  delivered  a  unanimous  opinion, 
"that  the  amendment  being  constitutionally  adopted,  there  could 
not  be  exercised  any  jurisdiction,  in  any  case,  past  or  future,  in 
which  a  State  was  sued  by  the  citizens  of  another  State,  or  by 
citizens  or  subjects  of  any  foreign  state."    *     *     * 


92  Cases  on  Federal  Procedure 

The  suability  of  a  State  without  its  consent  was  a  thing  unknown 
to  the  law.  This  has  been  so  often  laid  down  and  acknowledged  by 
courts  and  jurists  that  it  is  hardly  necessary  to  be  formally  as- 
serted. It  was  fully  shown  by  an  exhaustive  examination  of  the 
old  law  by  ^Ir.  Justice  Iredell  in  his  opinion  in  Chisholm  v. 
Georgia ;  and  it  has  been  conceded  in  every  case  since,  where  the 
question  has,  in  any  way,  been  presented,  even  in  the  cases  which 
have  gone  farthest  in  sustaining  suits  against  the  officers  or  agents 
of  States.  Osborn  v.  Bank  of  United  States,  9  Wheat.  738 ;  Davis 
V.  Gray,  16  Wall  203 ;  Board  of  Liquidation  v.  McComb,  92  U.  S. 
531 ;  United  States  v.  Lee,  106  U.  S.  196 ;  Poindexter  v.  Greenhow, 
109  U.  S.  63 ;  Virginia  Coupon  Cases,  114  U.  S.  269.  In  all  these 
cases  the  effort  was  to  show,  and  the  court  held,  that  the  suits 
were  not  against  the  State  or  the  United  States,  but  against  the 
individuals,  conceding  that  if  they  had  been  against  either  the 
State  or  the  United  States,  they  could  not  be  maintained.     *     *     * 

But  besides  the  presumption  that  no  anomalous  and  unheard  of 
proceedings  or  suits  were  intended  to  be  raised  up  by  the  Con- 
stitution— anomalous  and  unheard  of  when  the  Constitution  was 
adopted — an  additional  reason  why  the  jurisdiction  claimed  for 
the  Circuit  Court  does  not  exist,  is  the  language  of  the  act  of 
Congress  b}'-  which  its  jurisdiction  is  conferred.  The  words  are 
these:  "The  Circuit  courts  of  the  United  States  shall  have  original 
cognizance,  concurrent  with  the  courts  of  the  several  States,  of 
all  suits  of  a  civil  nature  at  common  law  or  in  equity,  *  *  * 
arising  under  the  Constitution  or  laws  of  the  United  States,  or 
treaties,"  etc. — "Concurrent  with  the  courts  of  the  several 
States."  Does  not  this  qualification  show  that  Congress,  in  legis- 
lating to  carry  the  Constitution  into  effect,  did  not  intend  to 
invest  its  courts  with  any  new  and  strange  jurisdictions?  The 
State  courts  have  no  power  to  entertain  suits  by  individuals 
against  a  State  without  its  consent.  Then  how  does  the  Circuit 
Court,  having  only  concurrent  jurisdiction,  acquire  any  such  pow- 
er? It  is  true  that  the  same  qualilication  existed  in  the  Judiciary 
Act  of  1789,  which  was  before  the  court  in  Chisholm  v.  Georgia, 
and  the  majority  of  the  court  did  not  think  it  was  sufficient  to 
limit  the  jurisdiction  of  the  Circuit  Court.  Justice  Iredell 
thought  differently.  In  view  of  llic  iiiiinner  in  which  that  decision 
was  received  by  Ihe  country,  the  adojjiion  of  the  Eleventh  Amend- 
ment, the  light  of  history  and  the  reason  of  the  thing,  we  think  we 
are  at  liberty  to  prefer  Justice  Iredell's  views  in  this  regard. 

It  is  not  necessary  tliiit  wr  sliould  ctitcr  wpnu  ;in  examination  of 


District  Courts  93 

the  reason  or  expediency  of  the  rule  which  exempts  a  sovereign 
State  from  prosecution  in  a  court  of  justice  at  the  suit  of  indi- 
viduals. This  is  fully  discussed  by  writers  on  public  law.  It  is 
enough  for  us  to  declare  its  existence.  The  legislative  department 
of  a  State  represents  its  polity  and  its  will;  and  it  is  called  upon 
by  the  highest  demands  of  natural  and  political  law  to  preserve 
justice  and  judgment,  and  to  hold  inviolate  the  public  obligations. 
Any  departure  from  this  rule,  except  for  reasons  most  cogent  (of 
which  the  Legislature,  and  not  the  courts,  is  the  judge),  never 
fails  in  the  end  to  incur  the  odium  of  the  world,  and  to  bring 
lasting  injury  upon  the  State  itself.  But  to  deprive  the  Legis- 
lature of  the  power  of  judging  what  the  honor  and  safety  of  the 
State  may  require,  even  at  the  expense  of  a  temporary  failure 
to  discharge  the  public  debts,  would  be  attended  with  greater  evils 
than  such  failure  can  cause. 

The  judgment  of  the  Circuit  Court  is 

Affirmed. 

Mr.  Justice  Harlan  concurring. 

I  concur  with  the  court  in  holding  that  a  suit  directlj^  against 
a  State  by  one  of  its  own  citizens  is  not  one  to  which  the  judicial 
power  of  the  United  States  extends,  unless  the  State  itself  consents 
to  be  sued.  Upon  this  ground  alone  I  assent  to  the  judgment. 
But  I  cannot  give  my  assent  to  many  things  said  in  the  opinion. 
The  comments  made  upon  the  decision  in  Chisholm  v.  Georgia  do 
not  meet  my  approval.  They  are  not  necessary  to  the  determina- 
tion of  the  present  case.  Besides,  I  am  of  the  opinion  that  the 
decision  in  that  case  was  based  upon  a  sound  interpretation  of  the 
Constitution  as  that  instrument  then  was.^ 


HAMMERSTEIN  v.  LYNE. 

District  Court,  W.  D.  Missouri,  W.  D.    1912. 

200  Fed.  165. 

In  equity,  suit  by  Oscar  Hammerstein  against  Felice  Lyne  in 
relation  to  a  contract  made  by  them  providing  that  the  latter  should 
sing  under  the  management  of  the  former. 

It  appears  that  the  defendant  was  born  at  Slater,  in  this  divi- 
sion and  district  of  Missouri;  that  she  subsequently  lived  in  Kan- 

1  Only  a  portion  of  the  opinion  is  reprinted. — Ed. 


94  Cases  on  Federal  Procedure 

sas  City  with  her  parents ;  that  on  or  about  August  12,  1907,  she 
disposed  of  all  her  property  and  eflfects,  except  such  as  she  took 
with  her,  and  left  Kansas  City,  with  her  mother,  for  Paris,  France, 
for  the  purpose  of  completing  her  musical  education  and  entering 
upon  an  operatic  career;  that  she  remained  in  Paris  three  years, 
revisiting  this  country  in  August,  1910,  during  which  time  she 
sang  under  the  management  of  the  complainant  in  New  York  and 
Philadelphia,  and  made  a  brief  visit  to  her  grandparents  in  Kan- 
sas City;  that  she  returned  to  Paris,  where  she  remained  until 
the  20tli  of  September  of  the  same  year,  and  then  she  went  to 
London  and  took  up  her  residence  there,  where  she  still  lives, 
her  address  being  No.  1  Hay  Hill,  Berkely  Square;  that  she 
remained  there  continuously  until  September  12,  1912,  when  she 
sailed  for  the  United  States  for  the  purpose  of  giving  the  concert 
in  Kansas  City  referred  to  in  the  bill  of  complaint.  On  the  occa- 
sion of  her  first  visit,  she  signed,  at  the  port  of  New  York,  a  non- 
resident "s  declaration  and  entry,  declaring  herself  to  be  a  resident 
of  Paris.  On  her  second  visit  she  signed  a  similar  nonresident's 
declaration  and  entry,  declaring  herself  to  be  a  resident  of  Eng- 
land. Her  mother  has  been  with  her  continuously,  and  her  father 
now  resides  in  Pennsjdvania.  None  of  the  family  have  either 
home  or  property  in  the  state  of  Missouri,  but  have  relatives  living 
in  Kansas  City.  The  defendant  declares  that,  when  she  left  Kan- 
sas City  in  August,  1907,  she  did  so  with  the  purpose  of  changing 
her  domicile,  and  with  no  intention  of  returning  here  to  live.  On 
the  contrary,  it  was  her  intention  to  take  up  a  residence  abroad 
in  the  pursuit  of  her  chosen  profession ;  that  she  first  established  a 
residence  in  Paris,  and  afterwards  her  present  residence  in  London, 
with  the  intention  of  remaining  there  for  an  indefinite  period,  and 
that  such  should  be  her  principal  and  permanent  residence ;  that 
she  has  not  now,  and  has  not  had  since  her  departure,  any  intention 
of  returning  to  IMissouri.  She  has  not,  however,  taken  any  steps  to 
alter  her  status  as  a  national  citi/en  of  this  country,  nor  is  it  her 
intention  so  to  do.  On  the  contrary,  she  explicitly  asserts  that 
she  is,  and  considers  herself  to  be,  a  citizen  of  the  United  States. 
Under  this  state  of  facts,  defendant  submits  that  this  court  has 
no  jurisdiction  over  her  in  this  case.  The  complainant  contends 
that  she  is  still  a  citizen  of  the  State  of  Missouri,  and  a  resident 
of  tlie  Western  Division  of  the  Western  District  thereof. 
'I'hfTc  was  a  [)Ica  to  the  jurisdiction.^ 

lTh(;   fnctH  arc   rcHtatcd,   largely   from   the   syllabus. — Ed. 


District  Courts  95 

Van  Valkenburgh,  District  Judge.  The  Constitution  of  the 
United  States  (article' 3,  §  2),  provides: 

"The  judicial  power  shall  extend  to  all  cases,  in  law  and 
equity,  arising  under  this  Constitution,  the  laws  of  the  United 
States,  and  treaties  made  or  which  shall  be  made  under  their 
authority ;  to  all  cases  affecting  ambassadors,  or  other  public  min- 
isters, and  consuls;  to  all  cases  of  admiralty  and  maritime  juris- 
diction ;  to  controversies  to  which  the  United  States  shall  be  a 
party;  to  controversies  between  two  or  more  States;  between  a 
State  and  citizens  of  another  State;  between  citizens  of  different 
States;  between  citizens  of  the  same  State  claiming  lands  under 
grants  of  different  States,  and  between  a  State,  or  the  citizens 
thereof,  and  foreign  States,  citizens  or  subjects." 

This  comprehends  and  limits  the  jurisdiction  of  the  National 
courts.  Defining  the  jurisdiction  of  the  District  courts,  the  Ju- 
dicial Code  (chapter  2,  §24)  provides: 

"The  District  courts  shall  have  original  jurisdiction  as  follows: 

' '  First.  Of  all  suits  of  a  civil  nature,  at  common  law  or  in  equity, 
brought  by  the  United  States,  or  by  any  officer  thereof  authorized 
by  law  to  sue,  or  between  citizens  of  the  same  State  claiming  lands 
under  grants  from  different  States;  or,  where  the  matter  in  con- 
troversy exceeds,  exclusive  of  interest  and  costs,  the  sum  or  value 
of  three  thousand  dollars,  and  (a)  arises  under  the  Constitution 
or  laws  of  the  United  States,  or  treaties  made,  or  which  shall  be 
made,  under  their  authority,  or  (b)  is  between  citizens  of  different 
States,  or  (c)  is  between  citizens  of  a  State  and  foreign  States, 
citizens  or  subjects." 

Jhe  jurisdiction  of  this  court  must  exist,  if  at  all,  because  the 
case  at  bar  belongs  to  one  of  the  classes  named,  more  specifically 
to  "b"  or  "c"  above  described.  The  complainant  is  admitted  to 
be  a  citizen  of  the  State  of  New  York.  Then,  to  confer  jurisdic- 
tion upon  this  court,  in  any  view,  the  defendant  must  be  a  citi- 
zen of  some  other  State,  or  she  must  be  an  alien.  It  is  not  and 
cannot  be  claimed  that  she  is  a  citizen  of  any  State  other  than 
Missouri. 

(1)  It  is  first  necessary  to  inquire  whether,  upon  the  testimony 
before  us,  the  defendant  can  be  held  to  be  a  citizen  of  any  state, 
and  in  determining  this  we  must  remember  that  the  citizenship 
with  which  we  are  now  concerned  is  that  contemplated  by  the 
judiciary    act.      Citizenship    in    this    country    is    a    dual    one — 


96  Cases  on  Federal  Procedure 

National  and  State — and  the  distinction  between  National  and 
State  citizenship  has  been  frequently  pointed  out. 

The  first  section  of  the  fourteenth  article  of  amendment  to  the 
Federal  Constitution  provides  that: 

"All  persons  born  or  naturalized  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United  States 
and  of  the  State  wherein  they  reside." 

Concerning  the  definition  of  citizenship  therein  contained, 
the  Supreme  Court  of  the  United  States  has  said : 

"The  distinction  between  citizenship  of  the  United  States  and 
citizenship  of  a  State  is  clearly  recognized  and  established.  Not 
only  may  a  man  be  a  citizen  of  the  United  States  without  being 
a  citizen  of  a  State,  but  an  important  element  is  necessary  to  con- 
vert the  former  into  the  latter.  He  must  reside  within  the  state 
to  make  him  a  citizen  of  it,  but  it  is  only  necessary  that  he  should 
be  born  or  naturalized  in  the  United  States  to  be  a  citizen  of  the 
Union.  It  is  quite  clear,  then,  that  there  is  a  citizenship  of  the 
United  States,  and  a  citizenship  of  a  State,  which  are  distinct 
from  each  other,  and  which  depend  upon  different  characteristics 
or  circumstances  in  the  individual."  Slaughterhouse  Cases,  16 
Wall.  36,  73,  74,  21  L.  Ed.  391. 

(2)  In  Cooper  v.  Galbraith,  No.  3,193,  Fed.  Cas.  473,  Mr.  Justice 
Washington  said: 

"Citizenship,  when  spoken  of  in  the  Constitution  in  reference 
to  the  jurisdiction  of  the  courts  of  the  United  States,  means 
nothing  more  than  residence.  The  citizens  of  each  State  are  en- 
titled to  all  the  privileges  and  immunities  of  citizens  in  the  sev- 
eral States;  but  to  give  jurisdiction  to  the  courts  of  the  United 
States,  the  suit  must  be  between  citizens  residing  in  different 
States,  or  between  a  citizen  and  an  alien." 

Of  course  the  residence  here  spoken  of  means  permanent  resi- 
dence animo  manendi.  This  appears  from  his  language  used  in 
Butler  v.  Farnsworth,  No.  2,240,  4  Fed.  Cas.  902,  wherein  he  says : 

"In  order  to  give  jurisdiction  to  the  courts  of  the  United 
States,  the  citizenship  of  the  party  must  be  founded  on  a  change 
of  domicile  and  i)ennanent  residence  in  the  State  to  which  he  may 
have  removed  from  anollier  State.  Mere  residence  is  prima  facie 
evidence  of  sinli  ejiange,  although,  when  it  is  explained  and  shown 
to  have  been  for  lenipoiar-y  pui-poses,  tiie  j)resumption  is  de- 
stroyed. 

I'"nitlier  discnssing  the  (|Mestion  liere  involved,  tlie  learned 
.Jusliee   savs: 


District  Courts  97 

"With  respect  to  the  immunities  which  the  rights  of  citizenship 
can  confer,  the  citizen  of  one  State  is  to  be  considered  as  a  citizen 
of  each  and  every  other  State  in  the  Union.  But  the  privilege 
of  suing  in  the  tribunals  of  the  nation  cannot  possibly  depend  upon 
the  fact  of  general  citizenship,  because,  if  it  did,  the  jurisdiction 
of  those  tribunals  would  extend  to  every  case  where  citizens  were 
parties,  since  a  citizen  of  Pennsylvania,  suing  a  citizen  of  the  same 
State,  might  truly  allege  that  he  is  himself  a  citizen  of  any  other 
State,  and  that  the  defendant  is  a  citizen  of  the  State  in  which 
the  suit  is  brought.  Or  every  case,  in  which  citizens  are  parties, 
might,  by  the  same  course  of  argument  be  excluded,  since,  it  being 
equally  true  that  a  citizen  of  New  Jersey,  who  is  plaintiff,  is  also 
a  citizen  of  Pennsylvania,  the  Pennsylvania  defendant  might  plead 
that  the  plaintiff  and  defendant  are  citizens  of  the  same  State. 
It  is  plain,  therefore,  that  citizenship,  in  relation  to  the  Federal 
judiciary,  cannot  be  that  which  has  just  been  referred  to,  but  must 
be  of  that  kind  which  identifies  the  party  with  some  particular 
State,  of  which  he  is  a  member.  The  theory  of  this  provision  in 
the  Constitution  is  the  danger  of  partiality  in  the  State  tribunals, 
where  the  suit  is  between  a  member  of  the  political  family,  where 
the  suit  is  instituted,  and  a  stranger.  Citizens,  in  reference  to  Fed- 
eral jurisdiction,  are  mentioned  as  in  opposition  to  each  other.  It 
is  a  citizen  of  one  State,  and  a  citizen  of  another  State  in  which 
the  suit  is  brought,  which  can  never  be  explained  by  a  general 
citizenship,  which  confounds  all  distinction,  and  admits  of  no 
opposition.  The  only  rational  construction  of  the  Constitution 
in  relation  to  Federal  jurisdiction,  is  to  limit  it  to  cases  where  the 
suit  is  between  the  resident  citizens  of  different  States,  or  where 
an  alien  is  a  party." 

Still  further  developing  this  idea,  Mr.  Justice  Story,  in  Case 
V.  Clarke,  No.  2,490,  5  Fed.  Cas.  254,  said : 

"To  constitute  a  person  a  citizen  of  a  State,  so  as  to  sue  in  the 
courts  of  the  United  States,  he  must  have  a  domicile  in  such 
State." 

In  Marks  v.  Marks  (C.  C.)  75  Fed.  321,  322,  the  rule  is  thus 
stated : 

"To  constitute  citizenship  of  a  State  in  relation  to  the  Judiciary 
Act  requires,  first,  residence  within  such  State;  and,  second,  an 
intention  that  such  residence  shall  be  permanent.  In  this  sense, 
state  citizenship  means  the  same  thing  as  domicile  in  its  general 
acceptation.  The  act  of  residence  does  not  alone  constitute  the 
domicile  of  a  party,  but  it  is  the  fact  of  residence,  accompanied 
Wheaton  C.  F.  P.— 7 


98  Cases  on  Federal  Procedure 

by  an  intention  of  remaining,  which  constitutes  domicile.  The 
distinction  between  domicile  and  mere  residence  ma}^  be  shortly 
put  as  that  between  residence  animo  manendi  and  residence  animo 
reverie  ndi." 

In  Sharon  v.  Hill  (C.  C.)  26  Fed.  337,  342,  it  was  said: 

"Citizenship  is  a  status  or  condition,  and  is  the  result  of  both 
act  and  intent.  *  *  *  The  residence  and  the  intent  must  co- 
exist and  correspond ;  and  although,  under  ordinary  circumstances, 
the  former  may  be  sufficient  evidence  of  the  latter,  it  is  not  con- 
clusive, and  the  contrary  may  always  be  shown ;  and  when  the 
question  of  citizenship  turns  on  the  intention  with  which  a  person 
has  resided  in  a  particular  State,  his  own  testimony,  under  ordi- 
nary circumstances,  is  entitled  to  great  weight  on  the  point." 

(3)  What  constitutes  citizenship  in  another  State,  in  the  sense 
of  the  Constitution  and  Judiciary  Act,  with  reference  to  the  juris- 
diction of  the  Federal  courts  was  discussed  by  Circuit  Justice 
:\lARsnALL  in  Prentiss  v.  Barton,  No.  11,384,  19  Fed.  Cas.  1276. 
He  said : 

"In  the  sense  of  the  Constitution  and  of  the  Judiciary  Act,  he 
who  is  incorporated  into  the  body  of  the  State,  by  permanent 
residence  therein,  so  as  to  become  a  member  of  it,  must  be  a  citi 
zen  of  that  State,  although  born  in  another.  Or,  to  use  the  phrase 
more  familiar  in  the  books,  a  citizen  of  the  United  States  must  be 
a  citizen  of  that  State  in  which  his  domicile  is  placed." 

He  points  out  that  State  citizenship  cannot  depend  entirely  upon 
birth ;  that  the  rights  so  conferred,  as  respects  suits  in  the  Courts 
of  the  United  States,  may  be  changed  by  a  change  of  residence. 

In  Prentiss  v.  Brennan,  No.  11,385,  19  Fed.  Cas.  1278,  Mr. 
Justice  Nelson  says: 

"A  person  may  be  a  citizen  of  the  United  States,  and  not  a 
citizen  of  any  particular  State.  This  is  the  condition  of  citizens 
residing  in  the  District  of  Columbia,  and  in  the  territories  of  the 
United  States,  or  who  have  taken  up  a  residence  abroad,  and  others 
that  might  be  iiientioncd.  A  fixed  or  permanent  residence  or 
domicile  in  a  Stale  is  essciilial  to  llic  duii-acter  of  citizenship  that 
will  bring  the  case  within  tlie  jurisdiction  of  the  F'ederal  courts." 

It  is  apparent  tliat  State  citi/cnsliip,  under  our  system  and  as 
used  in  tlie  Constilulion  and  Judiciary  Act,  is  essentially  different 
from  National  citizcnsliip.  The  latter  is  defined  to  be  the  rela- 
tion of  allegiance  and  protection  l)et\ve('n  individuals  and  their 
country.     It  is  the  antithesis  of  alicnaj^c.  and  involves  a  National 


District  Courts  99 

right  or  condition.  As  was  said  in  Lynch  v.  Clarke,  1  Sandf.  Ch. 
(N.  Y.)  583: 

"It  pertains  to  the  confederated  sovereignty — the  United  States 
— and  not  to  the  individual  States." 

A  citizen  of  the  United  States  owes  his  primary  and  highest 
allegiance  to  the  general  Government,  and  not  to  his  particular 
State.  On  the  other  hand,  State  citizenship  is  the  practical  equiva- 
lent of  domicile, 

"That  place  is  properly  the  domicile  of  a  person  in  which  he 
has  voluntarily  fixed  his  abode,  not  for  a  mere  special  or  tem- 
porary purpose,  but  with  a  present  intention  of  making  it  his 
permanent  home."     14  Cyc.  833. 

Generally  speaking,  and  especially  with  reference  to  the  Judi- 
ciary Act,  it  must  involve  National  citizenship.  Although  a  State 
may,  by  its  Constitution  and  laws,  confer  certain  privileges  of 
citizenship  on  foreign  subjects,  it  cannot  make  them  citizens  within 
the  meaning  of  this  act.  City  of  Minneapolis  v.  Reum,  6  C.  C.  A. 
31,  56  Fed.  576.  Nevertheless,  such  state  citizenship  or  domicile 
is  not  at  all  essential  to  National  citizenship. 

(4)  It  would  appear  conclusively  from  the  facts  presented,  from 
the  uniform  views  expressed  by  the  courts,  and  from  the  defini- 
tions universally  accepted,  that  the  defendant  in  this  case  has 
established  a  domicile  in  London,  England.  She  lives  there.  She 
declares  it  to  be  her  home,  and  that  it  is  her  intention  to  remain 
there  indefinitel}'.  She  has  abandoned  her  former  home  in  Mis- 
souri for  an  indefinite  and  uncertain  period,  with  no  present  in- 
tention of  returning.  Her  present  visit  is  a  temporary  one.  It 
is  her  purpose  to  return  to  England,  and  she  would  have  executed 
that  purpose  before  this,  had  it  not  been  for  the  pendency  of  this 
suit.  Ennis  et  al.  v.  Smith  et  al.,  14  How.  400,  423,  15  L.  Ed.  472 ; 
Morris  v.  Gilmer,  129  U.  S.  315,  328,  9  Sup.  Ct.  289,  32  L.  Ed.  690 ; 
14  Cyc.  833.  Under  such  circumstances,  she  is  not  and  cannot 
be  a  citizen  of  Missouri  within  the  meaning  of  the  Judiciary  Act 
conferring  jurisdiction  upon  the  Federal  courts  of  controversies 
between  citizens  of  different  States. 

(5)  Is  she,  then,  a  citizen  of  the  United  States,  or  is  she  an 
alien?  Because,  if  the  latter,  she  can  be  sued  in  this  court,  if 
found  in  this  jurisdiction,  by  the  complainant,  who  is  a  citizen 
of  the  State  of  New  York.  It  being  admitted  that  she  is  hy  birth 
a  citizen  of  the  United  States,  the  burden  is  upon  the  complainant 
to  show  that  she  has  renounced  or  otherwise  abandoned  or  lost  that 


100  Cases  on  Federal  Procedure 

citizenship.  She  herself  asserts  it.  What  must  we  conclude  from 
the  facts  appearing  in  testimony? 

There  has  been  no  act  of  naturalization,  nor  any  step  in  that 
direction.  If  she  has  lost  her  citizenship  at  all,  it  must  be  through 
some  act  of  expatriation.  What  is  essential  to  bring  about  that 
result  ?  It  will  hardly  be  contended  that  mere  change  of  resi- 
dence, even  with  intention  never  to  return,  can  have  that  effect. 
Miller,  Circuit  Justice,  in  Lanz  v.  Randall,  No.  8,080,  14  Fed. 
Cas.  113. 

"In  order  that  expatriation  may  be  considered  to  have  taken 
place,  there  must  be  an  actual  removal  from  the  country  of  which 
the  individual  is  then  a  citizen  or  subject,  made  voluntarily  by  a 
person  of  full  age  and  under  no  disability,  as  the  result  of  a  fixed 
determination  to  change  the  domicile  and  permanently  reside  else- 
where, as  well  as  to  throw  off  the  former  allegiance  and  become  the 
citizen  or  subject  of  a  foreign  power."     14  Cyc.  145,  146. 

In  State  v,  Adams,  45  Iowa  99,  24  Am.  Rep.  760,  it  was  held 
that: 

"Mere  removal  from  the  United  States  and  residence  in  a  for- 
eign country  for  a  period  of  years  does  not  operate  as  a  with- 
drawal of  citizenship,  where  it  is  not  shown  that  the  individual 
intended  to  or  did  become  a  foreign  citizen." 

See  also,  Ludlam  v.  Ludlam,  26  N.  Y.  356,  84  Am.  Dec.  193. 

It  may  be  conceded  that  a  citizen  may  reside  abroad  under  such 
circumstances  as  to  forfeit  his  right  to  the  protection  of  the  sov- 
ereignty to  which  he  owes  or  professes  allegiance;  but  this  is  not 
tantamount  to  a  loss  of  his  former  citizenship,  and  certainly  not 
within  the  meaning  of  the  Judiciary^  Act.  The  purpose  to  effect 
this  must  be  manifested  by  some  unequivocal  act  on  the  pari  of 
the  citizen  seeking  or  suffering  expatriation.  Comitis  v.  Parker- 
son  (C.  C.)  56  Fed.  557,  22  L.  R.  A.  148.  AYe  have  seen  that 
citizens  and  subjects  of  one  country  maj^  acquire  a  domicile  in 
a  foreign  country  without  such  forfeiture.  There  has  been  in  this 
case  no  such  act,  coupled  with  intention,  as  would  operate  to  con- 
vert this  defendant  into  an  alien  within  the  meaning  of  the  law 
now  under  consideration. 

It  follows  th>it,  inasmuch  as  Miss  Lyne  is  neither  a  citizen  of 
a  State,  nor  an  alien,  within  the  meaning  of  the  Judiciary  Act, 
this  court  is  without  original  jurisdiction  to  entertain  this  action. 
That  this  may  have  the  practical  effect  of  dcnj'ing  complainant 
thf  riglit  to  litigate  the  difference  })etween  himSelf  and  the  defend- 
ant  ill  any  Federal  Court  caruio!   iillci-  the  situation. 


District  Courts  101 

"As  has  been  so  often  said  by  the  Supreme  Court,  construing 
the  present  Judiciary  Act,  'the  whole  purport  and  effect  of  that 
act  was  not  to  enlarge,  but  to  restrict  and  distribute,  jurisdiction.' 
Shaw  V.  Mining  Co.,  145  U.  S.  444  (12  Sup.  Ct.  935,  36  L.  Ed. 
768).  And,  as  said  before.  Congress  under  constitutional  power 
created  all  Federal  courts  inferior  to  the  Supreme  Court,  and 
conferred  on  such  courts  their  jurisdiction  and  power.  Within 
the  constitutional  limitation  it  may  grant  the  exercise  to  such 
courts  of  just  so  much  or  so  little  judicial  power  as  in  its  wis- 
dom it  may  deem  fit. ' '  Mahopoulus  v.  Chicago,  R.  I.  &  P.  Ry.  Co. 
(C.  C.)   167  Fed.  172. 

It  will  not  be  urged  that  citizens  of  the  United  States  have  the 
right  to  prosecute  against  other  citizens  in  any  jurisdiction  they 
may  find  convenient.  If  Miss  Lyne  were  conceded  to  be  a  citizen 
of  Missouri,  and  studiously  avoiding  either  New  York  or  Mis- 
souri, had  elected  to  give  concerts  in  Chicago,  in  the  Northern  Dis- 
trict of  Illinois,  would  it  be  contended  that,  because  of  diverse  citi- 
zenship, the  complainant  could  have  invoked  the  jurisdiction  of 
the  Federal  courts  in  the  latter  district?  Obviously  not.  This  is 
because  the  Federal  courts,  in  this  respect,  are  courts  of  a  limited 
and  prescribed  jurisdiction. 

Here,  inasmuch  as  the  jurisdiction  is  entirely  wanting,  no  act 
of  the  parties  could  operate  to  confer  it  The  conclusion  here 
reached  necessarily  disposes  of  all  other  contentions  of  complainant 
made  in  argument  and  brief. 

The  plea  to  the  jurisdiction  must  be  sustained;  and  it  is  so 
ordered.^ 

RAILWAY  COMPANY  v.  WHITTON. 

Supreme  Court  of  the  United  States.    1871. 

80  V.  S.  (13  Wallace)  270,  20  L.  Ed.  571. 

Mr.  Justice  Field,  having  stated  the  case,  delivered  the  opinion 
of  the  court  as  follows: 

2  ' '  Domicile ' '  and  * '  citizenship ' '  are  not  always  synonymous.  Pannill  v. 
Eoanoke  Times  Co.,  252  Fed.  910,  913  (1918). 

A  wife  may  obtain  a  different  domicile  from  that  of  her  husband  for  the 
purpose  of  bringing  an  action  for  damages  in  a  federal  court.  Williamson 
V.  Osenton,  232  U.  S.  619,  34  S.  Ct.  442,  58  L.  ed.  758  (1914).  Compare 
Nichols  V.  Nichols,  92  Fed.  1  (1899). 

A  minor,  who  has  reached  years  of  discretion  and  has  no  parents,  grand- 
parents, or  statutory  guardian,  may  establish  a  domicile  anywhere  for  the 
purpose  of  federal  jurisdiction.  Bjornquist  v.  Boston  &  A.  B.  Co.,  250  Fed. 
929,  931-933,  163  C'  C.  A.  179,  181-183   (1918).— Ed. 


102  Cases  on  Federal  Procedure 

The  jurisdiction  of  the  action  by  the  Federal  Court  is  denied 
on  three  grounds;  the  character  of  the  parties  as  supposed  citi- 
zens of  the  same  State;  the  limitation  to  the  State  court  of  the 
remedy  given  by  the  statute  of  "Wisconsin ;  and  the  alleged  in- 
validity of  the  act  of  Congi-ess  of  March  2d,  1867,  under  which 
the  removal  from  the  State  court  was  made. 

First,  as  to  the  character  of  the  parties.  The  plaintiff  is  a 
citizen  of  the  State  of  Illinois  and  the  defendant  is  a  corporation 
created  under  the  laws  of  Wisconsin.  Although  a  corporation, 
being  an  artificial  body  created  by  legislative  power  is  not  a  citi- 
zen within  several  provisions  of  the  Constitution;  yet  it  has  been 
held,  and  that  must  now  be  regarded  as  settled  law,  that,  where 
rights  of  action  are  to  be  enforced,  it  will  be  considered  as  a  citi- 
zen of  the  State  where  it  was  created,  within  the  clause  extending 
the  judicial  power  of  the  United  States  to  controversies  between 
citizens  of  different  States.^  The  defendant,  therefore,  must  be 
regarded  for  the  purposes  of  this  action  as  a  citizen  of  Wisconsin. 
But  it  is  said,  and  here  the  objection  to  the  jurisdiction  arises, 
that  the  defendant  is  also  a  corporation  under  the  laws  of  Illinois, 
and,  therefore,  is  also  a  citizen  of  the  same  State  with  the  plain- 
tiff. The  answer  to  this  position  is  obvious.  In  Wisconsin 
the  laws  of  Illinois  have  no  operation.  The  defendant  is  a 
corporation,  and  as  such  a  citizen  of  Wisconsin  by  the  laws  of  that 
State.  It  is  not  there  a  corporation  or  a  citizen  of  any  other  State. 
Being  there  sued  it  can  only  be  brought  into  court  as  a  citizen  of 
that  State,  whatever  its  status  or  citizenship  may  be  elsewhere. 
Nor  is  there  anj'thing  against  this  view,  but,  on  the  contrary, 
much  to  support  it,  in  the  case  of  The  Ohio  and  Mississippi  Rail- 
road V.  Wheeler.2  In  that  case  the  declaration  averred  that  the 
plaintiffs  were  a  corporation  created  by  the  laws  of  the  States  of 
Indiana  and  Ohio,  and  that  the  defendant  was  a  citizen  of  Indiana, 
and  the  court,  after  referring  to  previous  decisions,  said  that  it 
must  be  regarded  as  settled  that  a  suit  by  or  against  a  corpora- 
tion in  its  corporate  name  is  a  suit  by  or  against  citizens  of  the 
State  which  created  it,  and  therefore  that  case  must  be  treated  as 
a  suit  in  which  citizens  of  Ohio  and  Indiana  were  joined  as  plain- 
tiffs against  a  citizen  of  the  latter  State,  and  of  course  could  not 
bo  maintained  in  a  court  ol"  the  United  States  where  jurisdiction  of 
ihc  case  deponded  upon  the  citizcnsliip  of  the  parties.  The  court 
.'Iso  observed  that   though   a   corporation  by  the  name  and  style 

1  I'.iiil  V.  Virginia,  8  Wallace,  177. 

2  1    I'.Ja.k,  286. 


District  Courts  103 

of  the  plaintiffs  in  that  case  appeared  to  have  been  chartered 
by  the  States  of  Ohio  and  Indiana,  clothed  with  the  same  capaci- 
ties and  powers,  and  intended  to  accomplish  the  same  objects, 
and  was  spoken  of  in  the  laws  of  the  States  as  one  corporate  body, 
exercising  the  same  powers  and  fulfilling  the  same  duties  in  both 
States,  yet  it  had  no  legal  existence  in  either  State  except  by  the 
law  of  that  State;  that  neither  State  could  confer  on  it  a  cor- 
porate existence  in  the  other  nor  add  to  or  diminish  the  powers 
to  be  there  exercised,  and  that  though  composed  of  and  repre- 
senting under  the  corporate  name  the  same  natural  persons,  its 
legal  entity,  which  existed  by  force  of  law,  could  have  no  exist- 
ence bej'ond  the  territory  of  the  State  or  sovereignty  which  brought 
it  into  life  and  endowed  it  with  its  faculties  and  powers. 

The  correctness  of  this  view  is  also  confirmed  by  the  recent 
decision  of  this  court  in  the  case  of  The  Railroad  Company  v. 
Harris.^  In  that  case  a  Maryland  railroad  corporation  was  em- 
powered by  the  Legislature  of  Virginia  to  construct  its  road 
through  that  State,  and  by  an  act  of  Congress  to  extend  a  lateral 
road  into  the  District  of  Columbia.  By  the  act  of  Virginia'  the 
company  was  granted  the  same  rights  and  privileges  in  that  State 
which  it  possessed  in  Maryland,  and  it  was  made  subject  to  simi- 
lar pains,  penalties,  and  obligations.  By  the  act  of  Congress  the 
company  was  authorized  to  exercise  in  the  District  of  Columbia 
the  same  powers,  rights,  and  privileges  in  the  extension  and  con- 
struction of  the  road,  as  in  the  construction  and  extension  of  any 
railroad  in  Maryland,  and  was  granted  the  same  rights,  benefits, 
and  immunities  in  the  use  of  the  road  which  were  provided  in 
its  charter,  except  the  right  to  construct  from  its  road  another 
lateral  road.  And  this  court  held  that  these  acts  did  not  create 
a  new  corporation  either  in  Virginia  or  the  District  of  Columbia, 
but  only  enabled  the  Maryland  corporation  to  exercise  its  facul- 
ties in  that  State  and  District.  They  did  not  alter  the  citizen- 
ship of  the  corporation  in  ^Maryland,  but  only  enlarged  the  sphere 
of  its  operations  and  made  it  subject  to  suit  in  Virginia  and  in 
the  District.  The  corporation,  said  the  court,  "cannot  migrate, 
but  may  exercise  its  authority  in  a  foreign  territory  upon  such 
conditions  as  may  be  prescribed  by  the  law  of  the  place.  One  of 
these  conditions  may  be  that  it  shall  consent  to  be  sued  there.  If 
it  does  business  there  it  will  be  presumed  to  have  assented,  and  will 
be  bound  accordingly.     For  the  purposes  of  Federal  jurisdiction 

8  12  Wallace,  65. 


104  Cases  on  Federal  Procedure 

it  is  regarded  as  if  it  were  a  citizen  of  the  State  where  it  was 
created,  and  no  averment  or  proof  as  to  the  citizenship  of  its 
members  elsewhere  will  be  permitted. ' '  * 


HEPBURN  AND  DUNDAS  v.  ELLZEY. 
Supreme  Court  of  the  United  States.    1805. 
6  V.  S.  (2  C ranch)  445,  2  L.  Ed.  332. 
Marshall,  Ch.  J.  delivered  the  opinion  of  the  court. 

The  question  in  this  case  is,  whether  the  plaintiffs,  as  residents 
of  the  District  of  Columbia,  can  maintain  an  action  in  the  Circuit 
Court  of  the  United  States  for  the  District  of  Virginia. 

This  depends  on  the  act  of  Congress  describing  the  jurisdic- 
tion of  that  court.  That  act  gives  jurisdiction  to  the  Circuit 
courts  in  cases  between  a  citizen  of  the  State  in  which  the  suit 
is  brought,  and  a  citizen  of  another  State.  To  support  the  juris- 
diction in  this  ease,  therefore,  it  must  appear  that  Columbia  is 
a  State. 

On  the  part  of  the  plaintiffs  it  has  been  urged  that  Columbia 
is  a  distinct  political  society;  and  is,  therefore,  "a  State"  accord- 
ing to  the  definitions  of  writers  on  general  law. 

This  is  true.  But  as  the  act  of  Congress  obviously  uses  the 
word  "State"  in  reference  to  that  term  as  used  in  the  Constitu- 
tion, it  becomes  necessary  to  inquire  whether  Columbia  is  a  State 
in  the  sense  of  that  instrument.  The  result  of  that  examination 
is  a  conviction  that  the  members  of  the  American  Confederacy 
only  are  the  States  contemplated  in  the  Constitution. 

The  House  of  Representatives  is  to  be  composed  of  members 
chosen  by  the  people  of  the  several  States;  and  each  State  shall 
have  at  least  one  Representative. 

The  Senate  of  the  United  States  shall  be  composed  of  two 
Senators  from  each  State. 

Each  State  shall  appoint,  for  the  election  of  the  executive,  a 
number  of  electors  equal  to  its  whole  number  of  Senators  and 
R<|)rfsentatives. 

4  The  fafts  nrc  nmittid,  nnJ  only  a  portion  of  tlie  opinion  is  reprinted. 
Compare  HaMwin  v.  Chicago  &  N.  W.  Ky.  Co.,  80  Fed.  167  (1898).— Ed. 


I 


District  Courts  105 

These  clauses  show  that  the  word  State  is  used  in  the  Consti- 
tution as  designating  a  member  of  the  Union,  and  excludes  from 
the  term  the  signification  attached  to  it  by  writers  on  the  law  of 
nations.  When  the  same  term  which  has  been  used  plainly  in  this 
limited  sense  in  the  articles  respecting  the  legislative  and  execu- 
tive departments,  is  also  employed  in  that  which  respects  the  judi- 
cial department,  it  must  be  understood  as  retaining  the  sense  origi- 
nally given  to  it. 

Other  passages  from  the  Constitution  have  been  cited  by  the 
plaintiffs  to  show  that  the  term  State  is  sometimes  used  in  its 
more  enlarged  sense.  But  on  examining  the  passages  quoted,  they 
do  not  prove  what  was  to  be  shown  by  them. 

It  is  true  that  as  citizens  of  the  United  States,  and  of  that  par- 
ticular district  which  is  subject  to  the  jurisdiction  of  Congress,  it 
is  extraordinary  that  the  courts  of  the  United  States,  which  are 
open  to  aliens,  and  to  the  citizens  of  every  State  in  the  Union, 
should  be  closed  upon  them.  But  this  is  a  subject  for  legisla- 
tive, not  for  judicial,  consideration. 

The  opinion  to  be  certified  to  the  Circuit  Court  is,  that  that 
court  has  no  jurisdiction  in  the  case.^ 


THE  CORPORATION  OF  NEW  ORLEANS  v.  WINTER. 

Supreme  Court  of  tJie  United  States.    1816. 

14  U.  S.  (1  Wheaton)  91,  4  L.  Ed.  44. 

Error  from  the  District  Court  for  the  District  of  Louisiana. 
The  defendants  in  error  commenced  their  suit  in  the  said  court,  to 
recover  the  possession  and  property  of  certain  lands  in  the  City 
of  New  Orleans ;  claiming  title  as  the  heirs  of  Elisha  Winter,  de- 
ceased, under  an  alleged  grant  from  the  Spanish  Government,  in 
1791 ;  which  lands,  it  was  stated,  were  afterwards  reclaimed  by 
the  Baron  de  Carondelet,  Governor  of  the  Province  of  Louisiana, 
for  the  use  of  fortifications.  One  of  the  parties,  petitioners  in  the 
court  below,  was  described  in  the  record  as  a  citizen  of  the  State 
of  Kentucky;  and  the  other,  as  a  citizen  of  the  Mississippi  Terri- 
tory. The  petitioners  recovered  a  judgment  in  the  court  below, 
from  which  a  writ  of  error  was  brought. 

1  The  facts  are  omitted. — Ed 


106  Cases  on  Federal  Procedure 

^Marshall,  Ch.  J.,  delivered  the  opinion  of  the  court,  and,  after 
stating  the  facts,  proceeded  as  follows : 

The  proceedings  of  the  court,  therefore,  is  arrested  in  limine, 
by  a  question  respecting  its  jurisdiction.  In  the  case  of  Hepburn 
&  Dundas  v.  Ellzey,  this  court  determined,  on  mature  considera- 
tion, that  a  citizen  of  the  District  of  Columbia  could  not  main- 
tain a  suit  in  the  Circuit  Court  of  the  United  States.  That  opin- 
ion is  still  retained. 

It  has  been  attempted  to  distinguish  a  Territory  from  the  Dis- 
trict of  Columbia;  but  the  court  is  of  opinion,  that  this  distinc- 
tion cannot  be  maintained.  They  may  differ  in  many  respects, 
but  neither  of  them  is  a  State,  in  the  sense  in  which  that  term  is 
used  in  the  Constitution.  Every  reason  assigned  for  the  opinion 
of  the  court,  that  a  citizen  of  Columbia  was  not  capable  of  suing 
in  the  courts  of  the  United  States,  under  the  Judiciary  Act,  is 
equally  applicable  to  a  citizen  of  a  territory.  Gabriel  Winter, 
then,  being  a  citizen  of  the  Mississippi  Territory,  was  incapable  of 
maintaining  a  suit  alone  in  the  Circuit  Court  of  Louisiana.  Is 
his  case  mended  by  being  associated  with  others  who  are  capable 
of  suing  in  that  court  ?  In  the  case  of  Strawbridge  et  al.  v.  Curtis 
et  al.,  it  was  decided,  that  where  a  joint  interest  is  prosecuted,  the 
jurisdiction  cannot  be  sustained,  unless  each  individual  be  en- 
titled to  claim  that  jurisdiction.  In  this  case  it  has  been  doubted, 
whether  the  parties  might  elect  to  sue  jointly  or  severally.  How- 
ever this  may  be,  having  elected  to  sue  jointly,  the  court  is  incap- 
able of  distinguishing  their  case,  so  far  as  respects  jurisdiction, 
from  one  in  wliicli  they  were  compelled  to  unite.  The  Circuit 
Court  of  Louisiana,  therefore,  had  no  jurisdiction  of  the  cause, 
and  their  judgment  must,  on  that  account,  be  reversed,  and  the 
petition  dismissed. 

Judgment  reversed.^ 

Un  the  f;iso  of  Watson  v.  Bonfils,  116  Fed.  157,  .'1:5  C.  C.  A.  535  (1902), 
•Sanborn,  Circuit  .IikIkc,  said,  "A  national  court  has  no  jurisdiction  of  a 
suit  or  controversy  between  a  citizen  of  a  state  and  a  citizen  of  a  territory, 
and  the  joinder  or  association  of  citizens  of  states  witli  the  respective  parties 
to  such  a  suit  or  controversy  does  not  remove  the  fatal  objection."  Compare 
Ulman  v.  Laencr's  Adm'r,  15.",  Fed.   1011,  1018   (1907). 

A  citizfn  of  one  state  may  sue  the  citizen  of  another  state  and  a  subject 
of  a  foreign  jiower  in  a  federal  court.  Ryan  v.  Ohnier,  2'.V.\  Pod.  165,  166- 
267   (1916). 

A  Htatc  is  not  a  citizen.  Descret  Water,  Oil  &  Irr.  Co.  v.  State  of  California, 
202  Fed.  498,  500,  120  C.  C.  A.  641,  643   (1913).--Ed. 


District  Courts  107 

BETANCOURT  v.  MUTUAL  RESERVE  FUND  LIFE  ASS'N. 

Circuit  Court,  S.  D.  New  York.    1900. 
101  Fed.  305. 

Lacombe,  Circuit  Judge. — The  action  is  upon  an  insurance  pol- 
icy, and  is  brought  in  the  Federal  Court  bj-  reason  of  diversity  of 
citizenship.  The  act  of  1887  gives  the  Circuit  Court  jurisdiction 
of  a  controversy  "between  citizens  of  a  State  and  foreign  States, 
citizens  or  subjects."  The  complaint  avers  that  the  defendant 
is  a  domestic  corporation  organized  under,  and  existing  by  virtue 
of,  the  laws  of  the  State  of  New  York,  and  having  its  principal 
office  in  the  City  of  New  York.  This  is  a  sufficient  averment  that 
the  defendant  is  a  "citizen  of  a  State,"  to  wit.  New  York.  The 
complaint  further  alleges  that  the  plaintiff  is,  and  at  all  the  times 
hereinafter  mentioned  has  been,  a  resident  and  inhabitant  of  the 
City  of  Matanzas,  in  the  Island  of  Cuba,  and  a  subject  and  citizen 
of  Cuba.  The  demurrer  asserts  that  the  court  has  no  jurisdic- 
tion of  the  subject  of  the  action,  and  that  the  complaint  does  not- 
state  facts  sufficient  to  constitute  a  cause  of  action.  Upon  the 
hearing  no  argument  was  made  or  proposition  advanced  in  sup- 
port of  the  second  ground  of  demurrer.  The  entire  reliance  of 
the  demurrant  appears  to  be  upon  the  proposition  that  there  is 
not  the  diversity  of  citizenship  which  the  statute  requires,  by 
reason  of  the  fact  that  the  plaintiff  is  a  citizen  of  Cuba.  Counsel 
does  not  maintain  that  plaintiff  was  not  a  foreign  citizen  before 
the  breaking  out  of  the  war  with  Spain,  nor  that  he  ceased  to  be 
a  foreign  citizen  when  the  joint  resolution  of  April  20,  1898,  was 
passed,  declaring  that  the  people  of  the  Island  of  Cuba  "are  and 
of  right  ought  to  be  free  and  independent,"  nor  that  the  military 
occupation  of  Cuba  by  the  forces  of  the  United  States  in  any  way 
changed  his  status.  It  is  contended,  however,  that  in  some  way 
or  other  the  treaty  with  Spain  of  December  10,  1898,  did,  from  the 
date  of  its  ratification,  remove  him  from  the  category  of  "foreign 
citizens  or  subjects."  By  the  first  article  of  the  treaty,  Spain 
relinquishes  all  claim  of  sovereignty  over  and  title  to  Cuba,  and 
as  the  Island  is,  upon  its  evacuation  by  Spain,  to  be  occupied  by 
the  United  States,  the  United  States  will,  so  long  as  such  occupa- 
tion shall  last,  assume  and  discharge  the  obligations  that  may, 
under  international  law,  result  from  the  fact  of  its  occupation, 
for  the  protection  of  life  and  property.     The  fourteenth  article 


108  Cases  on  Federal  Procedure 

further  states  that  it  is  understood  that  any  obligations  assumed  in 
this  treaty  by  the  United  States  with  respect  to  Cuba  are  limited 
to  the  time  of  its  occupancy  thereof.  The  ninth  article  provides 
for  Spanish  subjects,  natives  of  the  Peninsula,  who  remain  in  the 
territory  covered  by  the  treaty.  If  they  make  a  certain  declara- 
tion within  a  limited  time,  they  may  preserve  their  allegiance  to 
the  crown  of  Spain,  and  in  default  of  such  declaration  they  are 
to  be  held  to  have  renounced  such  allegiance,  and  to  have  adopted 
' '  the  nationality  of  the  territory  in  which  they  may  reside. ' '  There 
is  certainly  nothing  in  all  this  which  lends  any  color  to  the  proposi- 
tion that  the  plaintiff  is  not  a  foreign  citizen.  Even  the  brief 
memorandum  of  opinion  in  Stuart  v.  City  of  Easton,  156  U.  S.  46, 
15  Sup.  Ct.  268,  39  L,  Ed.  341,  gives  no  support  to  demurrant's 
contention.  One  may  be  puzzled  to  determine  upon  what  theory 
it  was  held  in  that  case  that  a  "citizen  of  London,  England,"  is 
not  a  "foreign  citizen;"  but  assuming,  as  suggested,  that  it  is 
because  London  is  not  a  free  and  independent  community,  but  owes 
allegiance  to  the  British  crown,  the  decision  has  no  application  to 
the  case  at  bar,  since  the  political  branch  of  this  Government  has 
found,  as  a  political  fact,  that  the  people  of  the  Island  of  Cuba 
"are  free  and  independent."  The  demurrer  is  therefore  over- 
ruled, and  plaintiff  may  take  judgment,  unless  defendant  file  an 
answer  within  10  days  after  the  entry  of  the  order  disposing  of 
this  motion.^ 


STRAWBRIDGE  et  al.  v.  CURTIS  et  al. 

Supreme  Court  of  the  United  States.    1806. 

7  U.  8.  (3  Cranch)  267,  2  L.  Ed.  435. 

This  was  an  appeal  from  a  decree  of  the  Circuit  Court,  for  the 
District  of  Massachusetts,  which  dismissed  the  complainants'  bill 
in  chan(;ery,  for  want  of  jurisdiction. 

Some  of  the  complainants  were  alleged  to  be  citizens  of  the 
State  ol'  Massachusetts.  The  defendants  were  also  stated  to  be 
citizens  of  the  same  State,  excepting  ('urtis,  who  was  averred  to 
be  a  citizen  of  the  Slate  of  Vermont,  and  upon  whom  the  subpoena 
was  sci'vcd    ill   Ihril    State. 

1  All  Tndian  rcHidin^,'  within  tlio  United  RtatoH,  and  who  is  a  member  of 
an  Iinliaii  frihc  living  tlirrrin,  is  iMit  ;i  "  forci^^n  citizin  or  niil),|ect."  Karahoo 
V.  AdaniH,  14  Fed.  Caa.  No.  7,014,  p.  i;i4,  1  Dillon,  :544  (1870).— Ed. 


i 


District  Courts  109 

Marshall,  Ch.  J.,  delivered  the  opinion  of  the  court. 

The  court  has  considered  this  case,  and  is  of  the  opinion  that 
the  jurisdiction  cannot  be  supported. 

The  words  of  the  act  of  Congress  are,  "where  an  alien  is  a  party ; 
or  the  suit  is  between  a  citizen  of  a  State  where  the  suit  is  brought, 
and  a  citizen  of  another  State." 

The  court  understands  these  expressions  to  mean,  that  each  dis- 
tinct interest  should  be  represented  by  persons,  all  of  whom  are 
entitled  to  sue,  or  may  be  sued,  in  the  Federal  courts.  That  is, 
that  where  the  interest  is  joint,  each  of  the  persons  concerned  in 
that  interest  must  be  competent  to  sue,  or  liable  to  be  sued,  in 
those  courts. 

But  the  court  does  not  mean  to  give  an  opinion  in  the  case  where 
several  parties  represent  several  distinct  interests,  and  some  of 
those  parties  are,  and  others  are  not,  competent  to  sue,  or  liable 
to  be  sued,  in  the  courts  of  the  United  States. 

Decree  affirmed?- 


DUNN  et  al.  v.  CLARKE  et  al. 
Supreme  Court  of  the  United  States.    1834. 
33  U.  S.  (8  Peters)  i,  8  L.  Ed.  845. 
Mr.  Justice  McLean  delivered  the  opinion  of  the  court. 

This  suit  was  brought  into  this  court,  by  an  appeal  from  the 
decree  of  the  Circuit  Court  of  the  United  States,  for  the  District 
of  Ohio. 

The  complainants  in  the  court  below  filed  their  bill  praying 
for  an  injunction  to  a  judgment  recovered  against  them  in  an 
action  of  ejectment,  and  to  obtain  a  decree  for  a  conveyance  of  the 
land  in  controversy.  All  the  complainants  are  residents  of  the 
State  of  Ohio,  and  so  are  the  defendants. 

The  judgment  at  law  was  obtained  by  Graham,  a  citizen  of  Vir- 

1  As  to  the  effect  upon  the  problem  presented  in  the  principal  case  of 
joining  trustees  and  married  women  as  defendants,  see  respectively,  Dunn 
V.  Waggoner,  11  Tenn.  (3  Yerger)  59  (1832);  Thompson  v.  Stalmann,  139 
Fed.  93    (1905). 

' '  If  the  jurisdiction  of  the  court  could  be  ousted  by  making  all  the  parties 
concerned  in  interest  plaintiffs,  those  who  are  citizens  of  the  same  state  with 
the  real  defendants  mav  refuse  to  ioin  in  the  suit,  and  may  be  made  de- 
fendants. ' '  Wisner  v.  Ogden,  30  Fed.  Cas.  No.  17,914,  p.  388,  394,  4  Wash. 
C.  0.   631,  642    (1827).— Ed. 


110  Cases  on  Federal  Procedure 

ginia,  but  who  has  since  deceased;  and  the  defendant,  Walter 
Dunn,  holds  the  land  recovered,  in  trust,  under  the  will  of  Graham. 

On  this  state  of  facts  a  question  is  raised,  whether  this  court 
have  jurisdiction  of  the  cause.  This  question  seems  not  to  have 
been  made  in  the  Circuit  Court. 

No  doubt  is  entertained  by  the  court,  that  jurisdiction  of  the 
case  may  be  sustained,  so  far  as  to  stay  execution  on  the  judg- 
ment at  law  against  Dunn,  He  is  the  representative  of  Graham ; 
and  although  he  is  a  citizen  of  Ohio,  yet  this  fact,  under  the  cir- 
cumstances, will  not  deprive  this  court  of  an  equitable  control  over 
the  judgment.  But  beyond  this,  the  decree  of  this  court  cannot 
extend. 

Of  the  action  at  law,  the  Circuit  Court  has  jurisdiction ;  and  no 
change  in  the  residence  or  condition  of  the  parties  can  take  away 
a  jurisdiction  which  has  once  attached.  If  Graham  had  lived,  the 
Circuit  Court  might  have  issued  an  injunction  to  his  judgment 
at  law,  without  a  personal  service  of  process,  except  on  his  coun- 
sel ;  and  as  Dunn  is  his  representative,  the  court  may  do  the  same 
thing,  as  against  him.  The  injunction  bill  is  not  considered  an 
original  bill  between  the  same  parties,  as  at  law;  but,  if  other 
parties  are  made  in  the  bill,  and  different  interests  involved,  it 
must  be  considered,  to  that  extent  at  least,  an  original  bill;  and 
the  jurisdiction  of  the  Circuit  Court  must  depend  upon  the  citi- 
zenship of  the  parties. 

In  the  present  case,  several  persons  are  made  defendants  who 
were  not  parties  or  privies  to  the  suit  at  law,  and  no  jurisdiction  as 
to  them  can  be  exercised,  by  this  or  the  Circuit  Court.  But,  as 
there  appear  to  be  matters  of  equity  in  the  case,  which  may  be 
investigated  by  a  State  court,  this  court  think  it  would  be  rea- 
sonable and  just  to  stay  all  proceedings  on  the  judgment,  until 
the  complainants  shall  have  time  to  seek  relief  from  a  State  court. 
And  the  court  direct  that  all  proceedings  be  thus  stayed,  and  that 
the  decree  of  the  Circuit  Court  be  niodilied  so  as  to  conform  to  this 
view  of  the  case.* 

1  The  facts  and  part  of  the  opinion  are  omitted. 

For  further  casi-s  involvin<j  rcprcnentative  parties,  see  McNutt  v.  Bland, 
4:{  U.  H.  (li  Howj.rci)  y,  l.S  14,  11  L.  Kd.  159,  IGl  (1844)  governor;  Coal 
Company  v.  HIat.hlord,  78  U.  S.  ( 1 1  Walla<e)  172,  175,  20  L.  FA.  179,  180 
(1870)  cxcciitorH  and  trusteeH;  Rue  v.  Houston,  80  U.  S.  (l.J  Wallai'c)  66, 
67,  20  L.  VaL  484  (1H71)  administrator;  Mexican  Central  Railway  Co.  v. 
h'r-knian,  187  U.  H.  429,  2:5  S.  Ct.  211,  47  L.  Ed.  245  (190;{)  guardian  of 
minor;  Biiimcnthal  v.  Craifr,  81  Fed.  .320,  .321,  26  C.  C\  A.  427,  428-429 
(1897^  Ki'-'fdian  of  minor;  WiKj,'in3  v.  Bethune,  29  Fed.  51,  52  (1886) 
l^uardjaii  of  one  non  conipoH  mentis. — Ed. 


I 


District  Courts  111 

OMAHA  HORSE  RY.  CO.  v.  CABLE  TRAM-WAY  CO. 
OF  OMAHA. 

Circuit  Court,  D.  Nebraska.    1888. 

33  Fed.  689. 

Brewer,  J, — The  case  is  now  submitted  on  demurrers  to  sup- 
plemental bill  and  amendments  thereto.  A  brief  review  of  the 
past  litigation  is  important.  The  original  bill  was  filed  by  the 
complainant,  a  corporation  chartered  by  the  Legislature  of  the 
Territory  of  Nebraska,  and  given  an  exclusive  franchise  for  the 
building  and  operating  of  a  horse-railroad  in  the  City  of  Omaha 
for  the  term  of  50  years.  The  defendant  is  also  a  corporation, 
organized  under  the  laws  of  the  State  of  Nebraska,  and  having 
received,  as  was  claimed,  permission  from  the  City  of  Omaha,  was 
proceeding  to  construct  a  cable  tram-way  in  its  streets.  The  bill 
sought  to  enjoin  the  defendant  from  prosecuting  its  work,  on  the 
ground  that  such  cable  tram-way  was  an  infringement  of  the 
exclusive  franchise  given  to  complainant,  which  exclusive  fran- 
chise the  State  of  Nebraska  was  restrained  by  the  Federal  Con- 
stitution from  interfering  with  in  any  way,  directly  or  indirectly. 
Upon  the  hearing  of  the  case  I  ruled  that  the  complainant's  ex- 
clusive franchise  was  limited  to  a  mere  horse-railway,  and  did  not 
include  all  manner  of  street-railway  travel,  and  therefore  that  the 
cable  tram-way  was  no  invasion  of  its  exclusive  franchise. 

It  was  strenuously  insisted  by  the  defendant  that,  having  ruled 
on  the  Federal  question  against  the  complainant,  the  only  proper 
decree  was  one  dismissing  the  bill;  but,  under  the  authority  of 
Railroad  Co.  v.  Mississippi,  102  U.  S.  135,  and  cases  cited  therein, 
I  ruled  that  the  existence  of  a  Federal  question  gave  to  this  court 
jurisdiction  of  the  entire  cause,  and  that  it  was  its  duty  to  hear 
and  determine  all  other  questions  existing  in  the  case  between  the 
parties.  The  Constitution  of  the  State  of  Nebraska  prohibits 
both  the  damaging  and  the  taking  of  private  property  for  public 
uses  without  compensation,  and  it  seemed  to  me,  under  the  facts  as 
disclosed  by  the  testimony,  that  while  the  complainant's  exclusive 
franchise  was  not  invaded,  its  property  rights  were  damaged  by 
the  building  of  the  proposed  cable  tram-way.  I  therefore  directed 
that  the  matter  of  the  damages  to  its  property  be  referred  to  a 
commission.  That  commission  examined  the  question,  and  re- 
ported in  favor  of  the  complainant  a  certain  amount.     On  ex- 


112  Cases  on  Federal  Procedure 

ceptions  to  their  report,  and  a  motion  to  confirm  it,  a  second 
lengthy  hearing  was  had.  After  reducing  the  amount  allowed 
by  the  commissioners,  I  sustained  their  report,  and  directed  a 
final  decree  in  favor  of  the  complainant  for  such  amount.  No 
such  decree  has  been  in  fact  entered,  but,  after  the  proceedings 
above  named,  complainant  obtained  leave  to  file  a  supplemental 
bill,  and  subsequently  certain  amendments  thereto.  The  matters 
presented  in  these  pleadings  are  those  now  challenged  by  de- 
murrer and  before  me  for  consideration. 

There  are  three  matters  presented :  First,  it  is  averred  that 
the  supposed  permission  to  the  defendant  to  occupy  the  streets 
of  Omaha  with  its  cable  tram-way  was  never  in  fact  legally  given, 
and  that  its  entry  upon  the  streets  was  a  mere  trespass ;  second, 
there  is  presented  a  question  about  the  occupancy  of  a  street  here- 
tofore occupied  by  neither  party;  and,  third,  defects  in  the  con- 
struction of  certain  crossings  of  complainant's  track  by  defend- 
ant's tram-way  are  alleged.  Several  grounds  for  demurrer  were 
discussed  on  the  argument.  One  only  will  be  noticed,  as  that  is 
deemed  fatal. 

It  is  doubtless  true,  as  a  general  proposition,  that,  at  any  time 
before  final  decree,  the  court  may  permit  the  bringing  in  of  matters 
germane  to  the  original  controversy  which  have  accrued  since  the 
filing  of  the  original  pleadings,  in  order  to  make  a  decision  of 
the  entire  controversy  between  the  parties.  But  is  not  this  rule 
largely  affected  by  the  question  whether  the  court  is  one  of  gen- 
eral or  limited  jurisdiction?  Can  it  convey  the  jurisdiction  to 
matters  over  which,  but  for  the  rule,  there  would  be  none?  The 
parties  here  are  both  citizens  of  Nebraska,  and  ordinary  disputes 
between  them  must  be  settled  by  the  State  courts,  and  the  Federal 
courts  can  only  take  cognizance  of  a  controversy  between  them 
in  which  there  is  a  Federal  question.  Now,  if  it  be  true,  as  I 
think  it  is,  and  have  so  held,  that  the  existence  of  a  Federal  ques- 
tion in  the  case  as  presented  gives  the  court  jurisdiction  to  hear 
and  determine  all  of  the  pending  questions,  can  it  be  true  that  it 
also  gives  the  court  power  to  continue  the  case,  and  draw  to  itself 
all  subsequent  disjnites,  even  if  connected  with  and  germane  to  the 
original  controversy?  Sec  to  what  tiiat,  in  this  case,  might  lead. 
The  complainant's  charter  has  30  years  still  to  run.  Some  of  the 
streets  are  occupied  by  the  tracks  of  each  part.y,  and,  as  the  city 
grows,  more  will  be  occupied  by  each,  and  doubtless,  in  some  cases, 
the  same  street  by  both.  Crossings  will,  in  the  nature  of  things, 
have  to  hr  made.      Perhaps  there  will   he  negligence  in  the  con- 


District  Courts  IV-i 

struction  of  these  crossings,  perhaps  negligence  in  the  manage- 
ment of  cars  of  each  as  they  approach  such  crossings.  All  such 
controversies  naturally  and  properly  belong  in  the  State  courts. 
Can  it  be  that,  because  in  the  first  instance  there  was  a  Federal 
question  growing  out  of  the  alleged  invasion  of  an  exclusive  fran- 
chise, the  Federal  courts  can,  by  supplemental  bills,  take  cogni- 
zance of  these  continuing  and  repeating  controversies?  It  will 
be  borne  in  mind  that  there  has  not  been  constant  unanimity  on 
the  part  of  the  judges  of  the  Supreme  Court  on  the  question 
whether  the  existence  of  a  Federal  question  gives  the  Federal 
Court  power  to  hear  and  determine  all  the  questions  in  the  case, 
and  surely,  if  that  be  a  matter  of  doubt,  it  would  be  unwise  to 
attempt  to  carry  the  jurisdiction  of  the  Federal  Court  a  step 
further.  It  is  not  the  design  of  the  Federal  Constitution,  or  the 
purpose  of  Congress,  to  make  the  Federal  Court  arbitrators  of 
disputes  between  citizens  of  the  same  State.  To  their  own  courts 
such  citizens  must  look,  and  the  repeated  monitions  of  the  Su- 
preme (Court?)  caution  the  trial  courts  not  to  take  jurisdiction 
of  cases  of  which  their  jurisdiction  is  doubtful.  Believing  that, 
unless  the  line  be  drawn  so  as  to  give  jurisdiction  of  such  ques- 
tions only  as  exist  in  the  case  at  the  time  it  is  submitted,  there 
can  be  no  definite  line  placed,  and  the  door  will  be  opened  to  an 
indefinite  exercise  of  jurisdiction  by  the  Federal  courts  over  mat- 
ters of  purely  local  nature,  I  feel  constrained  to  sustain  the  de- 
murrer. The  matters  presented  by  these  subsequent  bills  and 
amendments  are  purely  local  in  their  nature ;  of  them,  by  them- 
selves, confessedly  the  Federal  courts  would  have  no  jurisdiction. 
When  they  were  brought  into  the  case  there  remained  no  Federal 
question  in  it  for  determination,  and  there  being  no  Federal  ques- 
tion, there  is  nothing  upon  which  to  hang  the  jurisdiction  of  this 
court.  The  demurrer  will  be  sustained,  and  the  case  will  be  passed 
to  decree  upon  the  original  pleadings  and  the  report  of  the  com- 
missioners, as  modified.^ 

1  In  the  following  cases  the  court  held  that  the  proceeding  involved  was 
ancillary  in  its  nature:  Clarke  v.  Mathcwson,  37  U.  S.  (12  Peters)  164, 
9  L.  Ed.  1041  (1838)  bill  of  revivor;  Eailroad  Companies  v.  Chamberlain, 
73  U.  S.  (6  Wallace)  748,  18  L.  Ed.  859  (1867)  bill  to  set  aside  judgment 
and  lease;  Keilly  v.  Golding,  77  U.  S.  (10  Wallace)  56,  56-57,  19  L.  Ed. 
858  (1869)  proceeding  in  attachment  suit;  Atwood  v.  The  Portland  Co.,  10 
Fed.  283,  283  (1880)  injunction;  Pullman's  Palace-Car  Co.  v.  Washburn, 
66  Fed.  790,  792-794  (1895)  writ  of  scire  facias;  Continental  Trust  Co.  v. 
Toledo,  St.  L.  &  K.  C.  E.  Co.,  82  Fed.  642,  645  a897)  mortgage  foreclosure 
suit;  Jenks  v.  Brewster,  96  Fed.  625,  625-626  (1899),  suit  to  obtain  a  con- 
struction and  enforcement  of  decree  of  the  same  court;  Vallery  v.  Denver 
&  E.  G.  E.   Co.,  236  Fed.   176,   177-179,   149   C.   C.  A.   366,   367-369    (1916) 

Wheaton  C.  F.  P.— 8 


114  Cases  on  Federal  Procedure 

POSTAL  TELEGRAPH  CABLE  CO.  v.  ALABAMA. 

Supreme  Court  of  the  United  States.     1894. 

155  U.  S.  482,  15  S.  Ct.  192,  39  L.  Ed.  231. 

This  was  a  case  in  which  the  State  of  Alabama  was  suing  The 
Postal  Telegraph  Cable  Co.,  a  New  York  corporation,  in  the  Cir- 
cuit Court  of  the  State  of  Alabama  to  recover  taxes  and  penalties. 
Later  there  was  a  removal  to  the  Circuit  Court  of  the  United 
States.  Plaintiff  obtained  judgment  in  that  court  and  the  defend- 
ant sued  out  a  writ  of  error  bringing  the  case  before  the  Supreme 
Court  of  the  United  States.^ 

Mr.  Justice  Gray,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

A  State  is  not  a  citizen.  And,  under  the  Judiciary  acts  of  the 
United  States,  it  is  well  settled  that  a  suit  between  a  State  and  a 
citizen  or  corporation  of  another  State  is  not  between  citizens  of 
different  States;  and  that  the  Circuit  Court  of  the  United  States 
has  no  jurisdiction  of  it,  unless  it  arises  under  the  Constitution, 
laws  or  treaties  of  the  United  States.  Ames  v.  Kansas,  111  U.  S. 
449;  Stone  v.  South  Carolina,  117  U.  S.  430;  Germania  Ins.  Co. 
V.  Wisconsin,  119  U.  S.  473.2 


MORRIS  V.  GILMER. 

Supreme  Court  of  the  United  States.     1888. 

129  U.  S.  315,  9  S.  Ct.  289,  32  L.  Ed.  690. 

The  court  stated  the  case  as  follows: 

The  first  assignment  of  error  relates  to  the  action  of  the  Circuit 
Court  in  overruling  a  motion  to  dismiss  this  suit,  as  one  not  really 

receivership  suit;  Brown  v.  Crawford,  252  Fed.  248,  2.ir)-2;j(5  (1918)  cross- 
hill.  Tint  comjiarc  Clpvcland  I^n^inocrin^  Co.  v.  Galiou  D.  M.  Truck  Co., 
24:{   Fed,   400,   407    (1917)    counterclaim.— Ed. 

1  The  facts  arc  restated. — Ed. 

2  Only  a  portion   of   the   opinion   is  reprinted. — Ed. 


District  Courts  115 

and  substantially  involving  a  dispute  or  controversy  properly  with- 
in its  jurisdiction. 

On  the  7th  of  July,  1884,  the  present  appellee,  James  N.  Gilmer, 
who  was  then,  and  during  all  his  previous  life  had  been,  a  citizen 
of  Alabama,  instituted  a  suit  in  equity,  in  one  of  the  Chancery 
courts  of  the  State,  against  Josiah  Morris,  individually,  and  against 
Josiah  Morris  and  F.  M.  Billing  as  composing  the  firm  of  Josiah 
Morris  &  Co.,  citizens  of  Alabama.  Its  object  was  to  obtain  a  decree 
declaring  that  the  transfer,  by  the  plaintiff  to  Morris,  of  sixty 
shares  of  the  capital  stock  of  the  Elyton  Land  Company,  an  Ala- 
bama corporation,  was  made  in  trust  and  as  collateral  security  for 
the  payment  of  a  debt  due  from  the  plaintiff  to  Josiah  Morris  & 
Co. ;  ordering  an  accounting  in  respect  to  the  amount  of  that  debt, 
the  value  of  the  stock,  and  the  dividends  thereon  received  by 
Morris;  and  directing  him  upon  the  payment  of  the  debt  and 
interest,  or  so  much  thereof  as  appeared  to  be  unpaid,  to  transfer 
sixty  shares  of  the  stock  to  the  plaintiff,  and  pay  over  any  divi- 
dends received  in  excess  of  the  debt  due  from  the  latter. 

Besides  putting  in  issue  all  the  material  averments  of  the  bill, 
the  answer  relied  upon  laches  and  the  Statute  of  Limitations  in 
bar  of  the  suit.  The  cause  went  to  a  hearing,  upon  pleadings  and 
proofs,  and,  on  the  29th  of  April,  1885,  a  final  decree  was  rendered 
dismissing  the  suit ;  the  Chancery  Court  holding  that  the  claim  was 
barred  by  the  Statute  of  Limitations.  Upon  appeal,  the  decree  was 
affirmed  by  the  Supreme  Court  of  Alabama,  on  the  27th  day  of 
January,  1886.  That  court,  as  appears  from  the  opinion  of  it  , 
Chief  Justice,  refused  to  modify  the  decree,  so  as  to  make  it  ;' 
dismissal  without  prejudice  to  another  suit,  Gilmer  v.  Morris,  80 
Alabama  78, 

The  present  suit  was  instituted,  September  20,  1886,  in  the  Cir- 
cuit Court  of  the  United  States  by  Gilmer,  claiming  to  be  a  citizen 
of  Tennessee,  against  Morris  and  Billing.  It  relates  to  the  same 
shares  of  stock,  and  the  relief  asked  is  that  Morris  be  decreed  to 
account  for  and  pay  over  to  the  plaintiff  all  dividends  paid  after 
it  came  to  the  defendant's  hands,  (after  deducting  Gilmer's  in- 
debtedness to  Morris  or  to  Morris  &  Co.,)  and  to  transfer  the  sixty 
shares  of  stock  to  the  plaintiff.  The  defendants  filed  a  plea  setting 
up  the  final  decree  in  the  State  court  in  bar  of  the  present  suit. 
That  plea  having  been  overruled,  Gilmer  v.  Morris,  30  Fed.  Rep. 
476,  they  separately  answered;  Billing  disclaiming  any  interest  in 
the  stock,  or  in  the  dividends  thereon.  The  plaintiff  filed  a  replica- 
tion.  Subsequently,  December  16,  1887,  the  defendant  Morris  filed 


116  Cases  on  Federal  Procedure 

in  the  cause  the  affidavit  of  A.  S.  Gerald  to  the  effect  that,  in  a  con- 
versation held  by  him  with  the  plaintiff  on  or  about  November  14, 
1887,  the  latter  informed  him  "that  he  had  returned  to  the  city 
of  Montgomery  to  reside  permanently,  and  had  been  living  here 
with  that  intent  some  time  previous  to  said  conversation;"  and 
also  his  own  affidavit  to  the  effect  that  he  had  been  informed  and 
believed  that  the  plaintiff  returned  to  the  city  of  Montgomery 
"some  time  in  the  latter  part  of  May  or  early  part  of  June,  1887, 
with  the  purpose  and  intent  of  permanently  residing  in  the  State 
of  Alabama,  and  has  continuously  resided  in  said  State  of  Alabama 
ever  since  said  time."  On  the  17th  daj-  of  November,  1887,  before 
the  final  hearing  of  the  cause,  the  defendants,  with  leave  of  court, 
filed  a  written  motion  for  the  dismissal  of  the  suit  upon  the  ground 
that  it  did  not  really  and  substantially  involve  a  controversy  within 
the  jurisdiction  of  the  Circuit  Court ;  basing  his  motion  upon  the 
above  affidavits  of  Gerald  and  Morris,  and  upon  the  depositions  of 
the  plaintiff,  and  of  his  father,  F.  M.  Gilmer,  taken  in  this  cause  in 
behalf  of  the  plaintiff. 

Upon  consideration  of  said  affidavits  and  depositions,  and  after 
argument  by  counsel  for  the  respective  parties,  the  motion  to  dis- 
miss was  denied.  The  cause  subsequently  went  to  a  final  decree 
giving  the  plaintiff  the  relief  asked.  Gilmer  v.  Morris,  35  Fed. 
Rep.  682.1 

Mr.  Justice  Harlan,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

It  is  unnecessary  to  decide  whether  the  Circuit  Court  erred  in 
overruling  the  plea  of  former  adjudication,  or  in  rendering  the 
decree  appealed  from ;  for  we  are  of  opinion  that  the  motion  to 
dismiss  the  suit,  as  one  not  really  involving  a  controversy  within 
its  jurisdiction,  should  have  been  sustained.  It  is  provided  by 
the  fifth  section  of  the  act  of  March  3,  1876  (18  Stat.  472),  de- 
termining the  jurisdiction  of  the  Circuit  Courts  of  the  United 
States,  that  if  in  any  suit  commenced  in  one  of  such  courts  "it 
.shall  appear  to  the  satisfaction  of  said  Circuit  Court,  at  any  time 
after  such  suit  has  been  brouglit  or  r(>movcd  thereto,  that  such 
suit  does  not  really  and  substanlially  involve  a  dispute  or  con- 
troversy properly  within  the  jurisdiction  of  said  Circuit  Court, 
<.r  tlijit  the  parties  to  said  suit  have  been  improperly  or  collusively 

1  The  f.T'tH  nrt'  abbreviated. — Ed. 


District  Courts  117 

made  or  joined,  either  as  plaintiffs  or  defendants,  for  the  purpose 
of  creating  a  case  cognizable  or  removable  under  this  act,  the  said 
Circuit  Court  shall  proceed  no  further  therein,  but  shall  dismiss 
the  suit  or  remand  it  to  the  court  from  which  it  was  removed,  as 
justice  may  require,  and  shall  make  such  order  as  to  costs  as  shall 
be  just." 

The  case  presents  no  question  of  a  Federal  nature,  and  the  juris- 
diction of  the  Circuit  Court  was  invoked  solely  upon  the  ground 
that  the  plaintiff  was  a  citizen  of  Tennessee,  and  the  defendants 
citizens  of  Alabama.  But  if  the  plaintiff,  who  was  a  citizen  of 
Alabama  when  the  suit  in  the  State  court  was  determined,  had 
not  become,  in  fact,  a  citizen  of  Tennessee  when  the  present  suit 
was  instituted,  then,  clearly,  the  controversy  between  him  and  the 
defendants  was  not  one  of  which  the  Circuit  Court  could  properly 
take  cognizance;  in  which  case,  it  became  the  duty  of  that  court 
to  dismiss  it.  It  is  true,  that  by  the  words  of  the  statute,  this  duty 
arose  only  when  it  appeared  to  the  satisfaction  of  the  court  that 
the  suit  was  not  one  within  its  jurisdiction.  But  if  the  record  dis- 
closes a  controversy  of  which  the  court  cannot  properly  take  cog- 
nizance, its  duty  is  to  proceed  no  further  and  to  dismiss  the  suit; 
and  its  failure  or  refusal  to  do  what,  under  the  law  applicable  to 
the  facts  proved,  it  ought  to  do,  is  an  error  which  this  court,  upon 
its  own  motion,  will  correct,  when  the  case  is  brought  here  for 
review.  The  rule  is  inflexible  and  without  exception,  as  was  said, 
upon  full  consideration,  in  Mansfield,  Coldwater  &c.  Railway  v. 
Swan,  111  U.  S.  379,  382,  ''which  requires  this  court,  of  its  own 
motion,  to  deny  its  own  jurisdiction,  and,  in  the  exercise  of  its 
appellate  power,  that  of  all  other  courts  of  the  United  States,  in 
all  cases  where  such  jurisdiction  does  not  affirmatively  appear  in 
the  record  on  which,  in  the  exercise  of  that  power,  it  is  called  to 
act.  On  every  writ  of  error  or  appeal,  the  first  and  fundamental 
question  is  that  of  jurisdiction,  first,  of  this  court,  and  then  of  the 
court  from  which  the  record  comes.  This  question  the  court  is 
bound  to  ask  and  answer  for  itself,  even  when  not  otherwise  sug- 
gested, and  without  respect  to  the  relations  of  the  parties  to  it." 
To  the  same  effect  are  King  Bridge  Co.  v.  Otoe  County,  120  U.  S. 
225 ;  Grace  v.  American  Central  Insurance  Co.,  109  U.  S.  278,  283 ; 
Blacklock  v.  Small,  127  U.  S.  96,  105,  and  other  cases.  These  were 
cases  in  which  the  record  did  not  affirmatively  show  the  citizen- 
ship of  the  parties,  the  Circuit  Court  being  without  jurisdiction 
in  either  of  them  unless  the  parties  were  citizens  of  different  States. 
But  the  above  rule  is  equally  applicable  in  a  case  in  which  the 


118  Cases  on  Federal  Procedure 

averment  as  to  citizenship  is  sufficient,  and  such  averment  is  shown, 
in  some  appropriate  mode,  to  be  untrue.  While  under  the  Judi- 
ciary Act  of  1789,  an  issue  as  to  the  fact  of  citizenship  could  only 
be  made  a  plea  in  abatement,  when  the  pleadings  properly  averred 
the  citizenship  of  the  parties,  the  act  of  1875  imposes  upon  the 
Circuit  Court  the  dutj'  of  dismissing  a  suit,  if  it  appears  at  any 
time  after  it  is  brought  and  before  it  is  finally  disposed  of,  that  it 
does  not  really  and  substantially  involve  a  controversy  of  which 
it  nia}'  properly  take  cognizance.  Williams  v.  Nottawa,  104  U,  S. 
209,  211;  Farmington  v.  Pillsbury,  114  U.  S.  138,  143;  Little  v. 
Giles,  118  U.  S.  596,  602.  And  the  statute  does  not  prescribe  any 
particular  mode  in  which  such  fact  may  be  brought  to  the  atten- 
tion of  the  court.  It  may  be  done  by  affidavits,  or  the  depositions 
taken  in  the  cause  may  be  used  for  that  purpose.  However  done, 
it  should  be  upon  due  notice  to  the  parties  to  be  affected  by  the 
dismissal. 

It  is  contended  that  the  defendant  precluded  himself  from  rais- 
ing the  question  of  jurisdiction,  by  inviting  the  action  of  the  court 
upon  his  plea  of  former  adjudication,  and  by  waiting  until  the 
court  had  ruled  that  plea  to  be  insufficient  in  law.  In  support  of 
this  position  Hartog  v.  Memorj',  116  U.  S.  588,  is  cited.  We  have 
already  seen  that  this  court  must,  upon  its  own  motion,  guard 
against  any  invasion  of  the  jurisdiction  of  the  Circuit  Court  of 
the  United  States  as  defined  by  law,  where  the  want  of  jurisdiction 
appears  from  the  record  brought  here  on  appeal  or  writ  of  error. 
At  the  present  term  it  was  held  that  whether  the  Circuit  Court 
has  or  has  not  jurisdiction  is  a  question  which  this  court  must 
examine  and  determine,  even  if  the  parties  forbear  to  make  it  or 
consent  that  the  case  be  considered  upon  its  merits.  Metcalf  v. 
Watertown,  128  U.  S.  586. 

Nor  does  the  ease  of  Hartog  v.  Memory  sustain  the  position 
taken  by  the  defendant;  for  it  was  there  said  that  "if,  from  any 
soui'ce,  the  court  is  led  to  suspect  that  its  jurisdiction  has  been 
iiiJI>osed  upon  by  the  collusion  of  the  parties  or  in  any  other  way, 
it  may  at  once,  of  its  own  motion,  cause  the  necessary  inquiry  to 
be  made,  either  by  having  the  proper  issue  joined  and  tried,  or 
by  some  other  appropriate  form  of  proceeding,  and  act  as  justice 
may  require  for  its  own  protection  against  fraud  or  imposition." 
In  that  case,  the  citizenship  of  the  parties  was  properly  set  out  in 
the  pleadings,  and  the  case  was  submitted  to  the  jury  without  any 
question  being  raised  as  to  want  of  jurisdiction,  and  without  the 
attention   of  the   court   being  drawn   to   cei'tain   statements  inci- 


District  Courts  119 

dentally  made  in  the  deposition  of  the  defendant  against  whom 
the  verdict  was  rendered.  After  verdict,  the  latter  moved  for  a 
new  trial,  raising  upon  that  motion,  for  the  first  time,  the  ques- 
tion of  jurisdiction.  The  court  summarily  dismissed  the  action, 
upon  the  ground,  solelj',  of  want  of  jurisdiction,  without  affording 
the  plaintiff  any  opportunity  whatever  to  rebut  or  control  the  evi- 
dence upon  the  question  of  jurisdiction.  The  failure,  under  the 
peculiar  circumstances  disclosed  in  that  case,  to  give  such  oppor- 
tunity, was,  itself,  sufficient  to  justify  a  reversal  of  the  order  dis- 
missing the  actio)i,  and  what  was  said  that  was  irrelevant  to  the 
determination  of  that  question  was  unnecessary  to  the  decision, 
and  cannot  be  regarded  as  authoritative.  The  court  certainly  did 
not  intend  in  that  case  to  modify  or  relax  the  rule  announced  in 
previous  well-considered  cases.  In  the  case  before  us  the  question 
was  formally  raised,  during  the  progress  of  the  cause,  by  written 
motion,  of  which  the  plaintiff  had  due  notice,  and  to  which  he 
appeared  and  objected.  So  that  there  can  be  no  question  as  to 
any  want  of  opportunity  for  him  to  be  heard,  and  to  produce  evi- 
dence in  opposition  to  the  motion  to  dismiss. 

We  are  thus  brought  to  the  question  whether  the  plaintiff  was 
entitled  to  sue  in  the  Circuit  Court.  Was  he,  at  the  commence- 
ment of  this  suit,  a  citizen  of  Tennessee?  It  is  true,  as  contended 
by  the  defendant,  that  a  citizen  of  the  United  States  can  instantly 
transfer  his  citizenship  from  one  State  to  another,  Cooper  v.  Gal- 
braith,  3  Wash.  C.  C.  546,  554,  and  that  his  right  to  sue  in  the 
courts  of  the  United  States  is  none  the  less  because  his  change  of 
domicile  was  induced  by  the  purpose,  whether  avowed  or  not,  of 
invoking,  for  the  protection  of  his  rights,  the  jurisdiction  of  a 
Federal  Court.  As  said  by  IMr.  Justice  Story,  in  Briggs  v. 
French,  2  Sumner  251,  256,  "if  the  new  citizenship  is  really  and 
truly  acquired,  his  right  to  sue  is  a  legitimate,  constitutional  and 
legal  consequence,  not  to  be  impeached  by  the  motive  of  his  re- 
moval." Manhattan  Ins.  Co.  v.  Broughton,  109  U.  S.  121,  125; 
Jones  v.  League,  18  How.  76,  81.  There  must  be  an  actual,  not 
pretended,  change  of  domicil;  in  other  words,  the  removal  must 
be  "a  real  one,"  animo  manendi,  and  not  merely  ostensible."  Case 
v.  Clarke,  5  Mason  70.  The  intention  and  the  act  must  concur  in 
order  to  effect  such  a  change  of  domicil  as  constitutes  a  change  of 
citizenship.  In  Ennis  v.  Smith,  14  How.  400,  423,  it  was  said  that 
"a  removal  which  does  not  contemplate  an  absence  from  the 
former  domicil  for  an  indefinite  and  uncertain  time  is  not  a  change 
of  it,"  and  that  while  it  was  difficult  to  lay  down  any  rule  under 


120  Cases  on  Federal  Procedure 

which  every  instance  of  residence  could  be  brought  which  may 
make  a  domicil  of  choice,  "there  must  be,  to  constitute  it,  actual 
residence  in  the  place,  with  the  intention  that  it  is  to  be  a  principal 
and  permanent  residence." 

Upon  the  evidence  in  this  record,  we  cannot  resist  the  convic- 
tion that  the  plaintiff  had  no  purpose  to  acquire  a  domicil  or  settled 
home  in  Tennessee,  and  that  his  sole  object  in  removing  to  that 
State  was  to  place  himself  in  a  situation  to  invoke  the  jurisdiction 
of  the  Circuit  Court  of  the  United  States.  He  went  to  Tennessee 
without  any  present  intention  to  remain  there  permanently  or  for 
an  indefinite  time,  but  with  a  present  intention  to  return  to  Ala- 
bama as  soon  as  he  could  do  so  without  defeating  the  jurisdiction 
of  the  Federal  Court  to  determine  his  new  suit.  He  was,  there- 
fore, a  mere  sojourner  in  the  former  State  when  this  suit  was 
brought.  He  returned  to  Alabama  almost  immediately  after  giv- 
ing his  deposition.  The  case  comes  within  the  principle  announced 
in  Butler  v.  Farnsworth,  4  Wash.  C.  C.  101,  103,  where  Mr.  Justice 
"Washington  said:  "If  the  removal  be  for  the  purpose  of  com- 
mitting a  fraud  upon  the  law,  and  to  enable  the  party  to  avail 
himself  of  the  jurisdiction  of  the  Federal  courts,  and  that  fact  be 
made  out  by  his  acts,  the  court  must  pronounce  that  his  removal 
was  not  a  bona  fide  intention  of  changing  his  domicil,  however 
frequent  and  public  his  declarations  to  the  contrary  have  been 
made." 

The  decree  is  reversed,  with  costs  to  the  appellant  in  this  court, 
and  the  cause  remanded,  with  a  direction  to  dismiss  the  suit  with- 
out costs  in  the  court  below.* 


REESE  V.  ZINN. 

Circuit  Court,  D.  Went  Virginia.     1900. 

103  Fed.  97. 

Jackson,  District  Judge.  This  case  is  submitted,  first,  upon  the 
defendant's  plea  to  the  jurisdiction  of  this  court,  and  assigns  two 

2Tn  the  follouiiip  casos  tlioro  was  held  to  be  no  chanp;o  of  citizenship: 
faldwoll  V.  Firtli,  111  Fr.l.  177.  IHMSf),  X',  C.  C.  A.  4:i9,  446-447  (1898); 
Harton  v.  Howlcy,  \^>r,  Fed.  401  (1907);  Davis  v.  Dixon,  184  Fed.  509 
(1910);  Sullivan' V.  I.iovd.  2i;<  Fed.  27")  (1914);  Simpson  v.  Phillipsdale 
I'apor  Mill  f'o.,  22.T  Fod.flfil.  0(52  r)6:{  (1915).  But  see  Wiemer  v.  Louisville 
Wat^r  Co.,  130   Fed.  244    (1903).— Ed. 


District  Courts  121 

reasons  why  the  court  should  not  entertain  the  jurisdiction:  First, 
that  A.  L.  Hill  and  A.  J.  Hill,  who  are  made  defendants  to  this 
bill,  are  improperly  joined,  and  should  be  made  plaintiffs,  as  no 
relief  is  asked  against  them  in  said  bill,  they  being  citizens  and 
residents  of  the  same  State  as  the  defendants;  second,  that  the 
amount  in  controversy  does  not  exceed  the  sum  of  $2,000,  exclu- 
sive of  interest  and  costs. 

As  to  the  first  ground,  it  is  apparent,  from  both  the  bill  and 
answer  in  this  case,  that  A.  L.  Hill  and  A.  J.  Hill  are  really  not 
necessary  parties  to  this  action,  and  are  merely  formal  parties. 
There  is  no  relief  sought  against  them.  It  is  well  settled  that 
formal  parties  can  be  omitted  or  transposed  in  the  pleadings,  or 
they  may  be  joined  plaintiffs  or  defendants,  without  ousting  the 
jurisdiction  of  the  court.  Wormley  v.  Wormley,  8  Wheat.  421, 
451,  5  L.  Ed.  651 ;  Removal  Cases,  100  U.  S.  457,  25  L.  Ed.  593 ; 
Railroad  Co.  v.  Ketchum,  101  U.  S.  289,  25  L.  Ed.  932 ;  Walden  v. 
Skinner,  101  U.  S.  577,  25  L.  Ed.  963 ;  Harter  v.  Kernochan,  103 
U.  S.  562,  26  L.  Ed.  411.  There  are  numerous  decisions,  subse- 
quent to  the  cases  cited,  which  sustain  the  same  principle.  For 
this  reason,  the  court  overrules  the  plea  in  abatement  in  this  case.^ 


COMPTON  V.  JESUP. 

Circuit  Court  of  Appeals,  Sixth  Circuit;    1895. 

68  Fed.  263,  15  C.  C.  A.  397. 

In  1884  the  Central  Trust  Company,  a  citizen  of  New  York,  and 
James  Cheney,  a  citizen  of  Indiana,  filed  a  bill  to  foreclose  a  mort- 
gage held  by  them  against  the  Wabash,  St.  Louis  and  Pacific  Rail- 
way Company  in  the  State  courts  of  several  States  where  the 
mortgaged  property  lay.  These  suits  were  removed  to  the  proper 
Federal  courts.  There  was  the  necessary  diversity  of  citizenship. 
The  road  was  sold  under  a  decree  of  foreclosure,  but  the  road 

1  Only  that  portion  of  the  opinion  dealing  with  parties  is  reprinted. 

In  the  following  eases  are  to  be  found  examples  of  nominal  parties:  New 
Chester  Water  Co.  v.  Holly  Manuf 'g.  Co.,  53  Fed.  19,  25-26,  3  C.  O.  A.  399, 
405-406,  3  U.  S.  App.  264,  279  (1892);  Franklin  v.  Conrad-Stanford  Co., 
137  Fed.  737,  739,  70  C.  C.  A.  171,  173  (1905)  ;  Atchison,  T.  &  S.  F.  Ry.  Co. 
V.  Phillips,  176  Fed.  663,  100  C.  C.  A.  215  (1910);  White  v.  Chase,  201  Fed. 
896,  898,  120  C.  C.  A.  194,  196  (1912).  But  see  Post  v.  Buckley,  119  Fed. 
249   (1902).— Ed. 


122  Cases  on  Federal  Procedure 

was  not  ordered  to  be  turned  over  to  the  purchasers  by  the  re- 
ceivers, who  had  been  in  possession.  While  the  road  was  still  in 
the  possession'of  the  receivers,  Knox  and  Jesup,  mortgagees  under 
a  prior  mortgage,  commenced  a  suit  in  the  same  Federal  Court 
ordering  said  sale  to  foreclose  their  mortgage,  to  which  suit  numer- 
ous persons,  including  one  Compton,  having  interests  in  or  claims 
upon  the  road  were  made  parties,  and  filed  answers  and  cross  bills, 
citizens  of  the  same  State  appearing  upon  both  sides  of  the  con- 
troversy.^ 

Taft,  Circuit  Judge,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

The  first  ground  pressed  on  us  by  appellant's  counsel  for  revers- 
ing the  decree  of  the  Circuit  Court  is  that  there  was  no  jurisdic- 
tion to  enter  it.  The  contention  is — First,  that  the  Circuit  Court 
had  no  power  to  entertain  and  grant  relief  on  the  bill  of  Knox 
and  Jesup,  because  the  parties  to  it  had  not  the  necessary  diverse 
citizenship ;  and,  second,  that  no  power  existed  to  bring  in  Comp- 
ton, because,  he  being  a  citizen  of  the  District  of  Columbia,  his 
presence  as  a  party  would  destroy'  the  necessary  diversity  of  citi- 
zenship, even  if  it  before  existed.  It  must  be  conceded  that  the 
Circuit  Court  had  no  jurisdiction  to  hear  and  determine  the  con- 
troversies presented  by  the  Knox  and  Jesup  bill,  on  the  ground 
of  diverse  citizenship  of  the  parties,  for  it  did  not  exist.  The  juris- 
diction was  assumed  on  a  very  dififerent  ground.  When  the  bill 
was  filed  in  the  court  below,  the  property  which  it  was  thereby 
sought  to  sell  on  foreclosure  was  in  the  possession  of  receivers 
appointed  by  that  court  in  a  previous  litigation  instituted  to  fore- 
close mortgages  junior  to  the  Knox  and  Jesup  mortgage,  and  to 
sell  the  road  to  pay  all  junior  liens  and  floating  indebtedness.  It 
is  true,  the  litigation  had  proceeded  to  foreclosure  sale  and  final 
decree;  but  for  some  reason,  not  plainly  disclosed,  the  court  refused 
to  deliver  possession  to  the  purchasers,  and  retained  it  in  the  cus- 
tody of  the  court  for  the  purpose  of  protecting  the  interests  of 
all  the  parties  to  the  original  litigation.  Knox  and  Jesup  wished 
to  foreclose  their  moi-tgage,  to  mai-slial  all  liens,  to  sell  the  road 
;it  the  highest  price,  to  preserve  the  road  and  its  income  from  waste 
\>y  the  appointment  of  a  receiver.  It  is  manifest  that  no  other 
I'oiirt  than  that  in  wliidi  the  receivers  tlicn  in  jiossession  had  been 

1  The  facts  nro  n'stntcl,  nnrl  only  tlioso  essential  for  the  undpratanding 
iif  tliat  portion  of  the  opinion  dialing  with  jurisdiction  arc  given. — Ed. 


District  Courts  12.3 

appointed  could  grant  such  relief,  AVhether  other  courts  could 
decree  foreclosure  and  marshal  liens,  or  not,  certainly  no  other 
court  could  take  possession  of  and  sell  the  road,  and  deliver  an 
unclouded  title  to  a  purchaser.  If  Knox  and  Jesup  could  not  file 
their  bill  in  the  court  below,  then  the  act  of  that  court  in  maintain- 
ing possession  of  the  mortgaged  property  through  its  receivers 
would  result  in  great  injustice  to  them,  and  would  constitute  an 
abuse  of  its  process.  To  prevent  this,  the  court  below  had  inher- 
ent ancillary  jurisdiction,  pending  its  possession  of  the  railroad, 
to  hear  and  determine  all  petitions  for  relief  presented  to  it  in 
respect  of  the  possession  and  control  of  the  road.  It  is  of  no  im- 
portance that  the  custody  of  the  railroad  was  likely  soon  to  be 
changed  from  the  court  to  the  intending  purchaser  under  the 
previous  foreclosure  proceedings,  at  which  time  any  tribunal  of 
competent  jurisdiction  could  give  all  the  relief  prayed  by  Knox 
and  Jesup.  Their  mortgage  was  then  due.  They  were  not  obliged 
to  await  the  uncertain  delays  of  other  litigation  before  taking  steps 
to  assert  their  rights.  They  therefore  properly  appealed  to  the 
court  below,  as  the  only  tribunal  which  could  do  so,  to  give  them 
adequate  relief  at  once ;  and  this  was  properly  accorded  to  them, 
without  regard  to  the  citizenship  of  the  parties  to  their  bill.  The 
foregoing  reasoning  is  fully  supported  by  many  decisions  of  the 
Supreme  Court.  Necessity  and  comity  both  require  that  where, 
by  its  officers  acting  under  color  of  its  order  or  process,  a  court 
has  taken  into  its  custody  property  of  any  kind,  another  court, 
though  of  equal  and  co-ordinate  jurisdiction,  should  not  be  per- 
mitted either  to  oust  the  possession  of  the  first  court,  or  in  any 
way  to  interfere  with  its  complete  control  and  disposition  of  the 
property  for  the  purpose  of  the  cause  in  which  its  action  has  been 
invoked.  This  principle  has  been  laid  down  by  the  Supreme  Court 
of  the  United  States  in  a  long  line  of  cases.  Hagan  v.  Lucas,  10 
Pet.  400 ;  Williams  v.  Benedict,  8  How.  107 ;  Wiswall  v.  Sampson, 
14  How.  52 ;  Peale  v.  Phipps,  Id.  368 ;  Bank  v.  Horn,  17  How.  151 ; 
Pullman  v.  Osborn,  Id.  471 ;  Freeman  v.  Howe,  24  How.  450 ; 
Youley  v.  Lavender,  21  Wall.  276 ;  Bank  v.  Calhoun,  102  U.  S. 
256 ;  Barton  v.  Barbour,  104  U.  S.  126 ;  Krippendorf  v.  Hyde,  110 
U.  S.  276,  4  Sup.  Ct.  27 ;  Covell  v.  Heyman,  111  U.  S.  176,  4  Sup. 
Ct.  355;  Heidritter  v.  Oil-Cloth  Co.,  112  U.  S.  294,  5  Sup.  Ct.  135; 
Gumbel  v.  Pitkin,  124  U.  S.  131,  8  Sup.  Ct.  379 ;  Railroad  Co.  v. 
Gomila,  132  U.  S.  478,  10  Sup.  Ct.  155 ;  In  re  Tyler,  149  U.  S.  181, 
13  Sup.  Ct.  785 ;  Porter  v.  Sabin,  149  U.  S.  473,  13  Sup.  Ct.  1008 ; 
Byers  v.  McAuley,  149  U.  S.  608,  13  Sup.  Ct.  906.     Again,  every 


124  Cases  on  Federal  Procedure 

court  has  inherent  equitable  power  to  prevent  its  own  process  from 
working  injustice  to  any  one,  and  may  entertain  a  petition  by  the 
aggrieved  person,  either  in  the  form  of  a  simple  motion,  or  by 
intervention  pro  interesse  suo  in  the  cause  in  which  the  process 
issued,  or  by  ancillary  or  dependent  bill  in  equity,  and  may  afford 
such  relief  as  right  and  justice  require.  The  existence  of  such 
power,  independent  of  statutory  jurisdiction,  is  recognized  by  the 
Supreme  Court  in  Freeman  v.  Howe,  24  How.  450 ;  Minnesota 
Co.  v.  St.  Paul  Co.,  2  Wall.  609-633 ;  Railroad  Co.  v.  Chamberlain, 
6  Wall.  748;  Krippendorf  v.  Hyde,  110  U.  S.  276,  4  Sup.  Ct.  27; 
Pacific  R.  Co.  of  JMissouri  v.  Missouri  Pac.  Ry.  Co.,  Ill  U.  S.  505, 
4  Sup.  Ct.  583 ;  Stewart  v.  Dunham,  115  U.  S.  61,  5  Sup.  Ct.  1163 ; 
Phelps  V.  Oaks,  117  U.  S.  236,  6  Sup.  Ct.  714 ;  Dewey  v.  Coal  Co., 
123  U.  S.  329,  8  Sup.  Ct.  148;  Gumbel  v.  Pitkin,  124  U.  S.  131,  8 
Sup.  Ct.  379 ;  Johnson  v.  Christian,  125  U.  S.  642-646,  8  Sup.  Ct. 
989,  1135;  Morgan's  L.  &  T.  Railroad  &  Steamship  Co.  v.  Texas 
Cent.  Ry.  Co.,  137  U.  S.  171,  11  Sup.  Ct.  61. 

Now,  it  frequently  happens  that  under  the  process  of  the  Fed- 
eral courts,  exercising  the  original  and  lawful  jurisdiction  con- 
ferred expressly  by  the  Federal  constitution  and  statutes,  posses- 
sion is  taken  and  control  exercised  over  property  in  which  persons 
not  indispensable  parties  to  the  suit  have  an  interest,  by  lien, 
mortgage,  and  in  other  ways.  In  such  cases  there  often  is  no 
diversity  of  citizenship  between  such  persons  and  the  plaintiff  or 
defendant  to  the  suit  which  would  warrant  the  Federal  Court  in 
hearing  an  independent  suit  between  them.  But  it  may  be  essen- 
tial, to  preserve  intact  their  rights  in  the  property,  that  such  third 
persons  should  be  permitted,  at  once,  to  have  specific  relief,  which 
can  only  be  granted  by  a  court  having  possession  and  control  of  the 
property.  And  yet,  in  accordance  with  the  principle  already 
stated,  no  court  but  the  Federal  Court  can  exercise  possession  and 
control  over  the  property  in  its  custody.  Of  necessity,  therefore, 
the  Federal  courts  exercise  an  ancillary  jurisdiction  in  such  eases; 
and  third  persons  are  permitted  to  come  into  the  Federal  Court, 
and  set  up  their  interest  in  the  property,  and  secure  the  same  full 
and  adequate  protection  and  relief  to  which  they  M'ould  be  entitled 
in  any  court  of  competent  jurisdiction,  were  the  property  not 
impounded  in  the  Federal  Court.  In  Freeman  v.  Howe,  24  How. 
450,  a  sheriff,  under  a  replevin  from  a  State  court  sued  out  by 
mortgagees  of  a  railroad  company,  ousted  a  United  States  marshal 
from  possession  of  certain  railroad  cars  attached  by  him  under 
mrsnc  ])rocess  from  a  Federal  Coui'l.     The  act  of  the  sheriff  was 


District  Courts  125 

held  void,  without  respect  to  the  merits  of  the  conflicting  claims 
of  the  plaintiffs  in  the  two  proceedings,  because  the  cars  were  in 
the  custody  of  the  Federal  Court,  and  beyond  the  reach  of  the 
sheriff,  when  he  served  the  replevin.  And  it  was  answered,  to  the 
argument  that  in  this  way  the  replevying  mortgagees  were  left 
remediless,  because  their  citizenship  prevented  recourse  to  the 
Federal  Court,  that  the  Federal  Court,  to  prevent  such  abuse  of 
its  process,  had  jurisdiction,  ancillary  to  its  original  jurisdiction 
asserted  in  the  attachment,  to  afford  the  mortgagees  all  the  relief 
they  could  obtain  in  any  court  where  the  jurisdiction  was  not 
limited  by  citizenship.  In  Bank  v.  Calhoun,  102  U,  S.  256,  a 
Federal  Court  had  taken  possession,  by  its  receiver,  of  the  mort- 
gaged railroad  in  a  foreclosure  suit.  In  an  action  between  other 
parties,  an  attachment  was  sued  out,  and  levied  upon  the  road. 
It  was  held  that  the  Federal  Court,  having  drawn  to  itself  the 
subject-matter  of  the  litigation,  had  acquired  the  right  and  juris- 
diction to  decide  upon  all  conflicting  claims  to  the  possession  and 
control  of  the  road,  and  that  the  attachment  suit  which  had  begun 
in  the  State  court  could  be  properly  removed,  by  stipulation  of 
the  parties,  to  the  Federal  Court,  because,  in  the  language  of 
Justice  Miller: 

"The  parties  did  no  more  than  what  they  could  have  been  com- 
pelled to  do  by  the  injunction  of  the  latter  (that  is,  the  Federal 
Court),  and  what  would  have  been  done  by  such  compulsory  order, 
if  they  had  not  submitted  to  it  by  agreement." 

In  Krippendorf  v.  Hyde,  110  U.  S.  276,  4  Sup.  Ct.  27,  a  marshal, 
on  mesne  process  issuing  out  of  the  Federal  Court,  attached  prop- 
erty, as  the  property  of  the  defendant,  in  the  possession  of  an- 
other, who  claimed  to  own  it.  It  was  held  that  this  other,  although 
a  citizen  of  the  same  State  as  the  defendant,  might  seek  redress  in 
the  Federal  Court,  either  by  a  petition  pro  interesse  suo,  or  by 
ancillary  bill,  or  by  summarj^  motion,  according  to  circumstances. 
In  this  case  Mr.  Justice  Matthews  reviews  the  decision  and 
language  of  Mr.  Justice  Nelson  in  the  case  of  Freeman  v.  Howe, 
and,  speaking  for  the  court,  fully  approves  the  same.     He  said : 

"It  has  been  sometimes  said  that  this  statement  was  obiter 
dictum;  and  not  to  be  treated  as  the  law  of  the  case ;  but  it  was, 
in  point  of  fact,  a  substantial  part  of  the  argument  in  support  of 
the  judgment,  and,  on  consideration,  we  feel  bound  to  confirm  it, 
in  substance,  as  logically  necessary  to  it.  For  if  we  afiirra,  as  that 
decision  does,  the  exclusive  right  of  the  Circuit  Court  in  such  a 
case  to  maintain  the  custody  of  property  seized  and  held  under  its 


126  Cases  on  Federal  Procedure 

process  by  its  officers,  and  thus  to  take  from  owners  wrongfully 
deprived  of  possession  the  ordinary  means  of  redress  by  suits  for 
restitution  in  State  courts,  wiiere  any  one  may  sue,  without  regard 
to  citizenship,  it  is  but  common  justice  to  furnish  them  with  an 
equal  and  adequate  remedy  in  the  court  itself  which  maintains 
control  of  the  property;  and  as  this  may  not  be  done  by  original 
suits,  on  account  of  the  nature  of  the  jurisdiction,  as  limited  by 
differences  of  citizenship,  it  can  only  be  accomplished  by  the  exer- 
cise of  the  inherent  and  equitable  powers  of  the  court  in  ancillary 
and  dependent  proceedings  incidental  to  the  cause  in  which  the 
property  is  held,  so  as  to  give  to  the  claimant  from  whose  pos- 
session it  has  been  taken  the  opportunity  to  assert  and  enforce 
his  right." 

In  Gumbel  v.  Pitkin,  124  U.  S.  132,  8  Sup.  Ct.  379,  a  United 
States  marshal,  by  invalid  process  issued  from  a  Federal  Court, 
took  possession  of  property,  A  sheriff  sought  to  levy  on  the  prop- 
erty by  virtue  of  a  lawful  attachment  for  a  State  court,  and  left 
it  with  the  marshal  as  garnishee.  Subsequently  the  marshal  sold 
the  property  under  a  valid  process  coming  to  his  hands  after  the 
sheriff's  attempt  at  garnishment.  It  was  held  that  the  plaintiff  in 
the  State  attachment  proceedings  might  intervene  in  the  Federal 
Court,  and  be  awarded  the  priority  to  which  he  would  have  been 
entitled  had  the  sheriff  been  permitted  to  make  an  actual  levy 
under  his  writ.  Said  Mr.  Justice  Matthews,  in  summing  up  the 
conclusion  of  the  court : 

' '  The  case,  therefore,  stands  thus :  For  the  reasons  growing  out 
of  the  peculiar  relation  between  Federal  and  State  courts  exer- 
cising co-ordinate  jurisdiction  over  the  same  territory,  the  Circuit 
Court  acquired  the  exclusive  jurisdiction  to  dispose  of  the  prop- 
erty brought  into  its  custody  under  color  of  its  authority,  although 
by  illegal  means,  and  to  decide  all  questions  of  conflicting  right 
thereto.  The  plaintiff"  in  error,  having  pursued  his  remedy  by 
action  against  his  debtor  in  the  State  court,  to  which  alone,  by 
reason  of  citizenship,  he  could  resort,  attempted  the  levy  of  his 
writ  of  attachment  upon  the  goods  in  the  possession  of  the  marshal. 
Not  being  allowed  to  withdraw  from  the  marshal  the  actual  pos- 
session of  the  property  sought  to  be  attached,  he  served  upon  the 
marshal  notice  of  his  writ  as  garnishee.  Not  being  able  by  this 
process  to  subje(;t  the  marshal  to  answer  personally  to  the  State 
court,  he  made  himself  a  party  to  the  proceedings  in  the  Circuit 
Court,  by  its  leave,  and  proceeded  in  that  tribunal  against  its 
officer  and  the  creditors  for  wliom  he  had  acted.  On  a  regular 
trial  it  appeared  as  a  fact  that  at  the  time  of  the  notice  the  marshal 


District  Courts  127 

was  in  possession  of  the  property  wrongfully,  as  an  officer,  and 
therefore  chargeable  as  an  individual.  It  was  competent  for  the 
Circuit  Court,  and,  having  the  power,  it  was  its  duty,  to  hold  the 
marshal  liable  as  garnishee;  and  having  in  its  custody  the  fund 
arising  from  the  sale  of  the  projjerty,  and  all  the  parties  inter- 
ested in  it  before  it,  that  court  was  bound  to  do  complete  justice 
between  all  the  parties,  on  the  footing  of  these  rights,  and  give 
to  the  plaintiff  in  error  the  priority  over  all  other  creditors  to 
which,  by  virtue  of  his  proceedings,  and  as  prayed  for  in  his  peti- 
tion of  intervention,  he  was  entitled." 

The  ease  most  like  the  case  at  bar  is  that  of  Morgan's  L.  &  T. 
Railroad  &  Steamship  Co.  v.  Texas  Central  Railway  Company,  a 
citizen  of  Texas,  against  the  Farmers'  Loan  &  Trust  Company,  a 
citizen  of  New  York,  and  the  Metropolitan  Trust  Company,  a 
citizen  of  New  York,  seeking  to  have  certain  debts  owing  by  the 
Texas  Central  Railway  Company  to  it  declared  a  lien  on  the  rail- 
road of  the  railway  company,  prior  in  right  to  mortgages  upon  the 
same  road  held  by  the  other  defendants  of  the  two  ti^ist  com- 
panies. A  receiver  had  been  appointed  in  the  original  suit.  Sub- 
sequently the  Farmers'  Loan  &  Trust  Company  filed  its  cross  bill 
against  the  complainant  and  its  codefendants,  including  the  Metro- 
politan Trust  Company.  As  the  two  trust  companies  were  citizens 
of  the  same  State, — New  York — the  jurisdiction  of  the  court  could 
not  be  maintained  to  give  relief  on  the  cross  bill,  if  it  depended  on 
diverse  citizenship.  Objection  was  taken  to  the  action  of  the 
court  in  granting  foreclosure  upon  the  cross  bill,  but  the  objection 
was  not  sustained  in  the  Supreme  Court  of  the  United  States. 
Said  the  chief  justice,  on  page  201,  137  U.  S.,  and  page  61,  11 
Sup.  Ct: 

"It  may  be  that,  so  far  as  it  sought  the  further  aid  of  the  court 
beyond  the  purposes  of  defense  to  the  original  bill,  it  was  not  a 
pure  cross  bill,  but  that  is  immaterial.  The  subject-matter  was 
the  same,  although  the  complainant  in  the  cross  bill  asserted  rights 
to  the  property  different  from  those  allowed  to  it  in  the  original 
bill,  and  claimed  an  affirmative  decree  upon  those  rights.  A  com- 
plete determination  of  the  matters  already  in  litigation  could  not 
have  been  obtained,  except  through  a  cross  bill,  and  different  relief 
from  that  prayed  in  the  original  bill  would  necessarily  be  sought. 
*  *  *  And  whether  this  hill  he  regarded  as  a  pure  cross  hill, 
as  an  original  hill  in  the  nature  of  a  cross  hill,  or  as  an  original 
hill,  there  is  no  error  calling  for  the  disturbance  of  the  decree 
because  the  court  proceeded  upon  it  in  connection  with  the  other 
pleadings.     The  jurisdiction  of  the  Circuit  Court  did  not  depend 


128  Cases  on  Federal  Procedure 

upon  the  citizenship  of  the  parties,  but  on  the  subject-matter  in 
litigation.  The  property  was  in  the  actual  possession  of  that  court, 
and  this  drew  to  it  the  right  to  decide  upon  the  conflicting  claims 
to  its  ultimate  possession  and  control." 

The  clause  in  the  foregoing-  which  we  have  italicized  shows 
clearly  that  the  ancillary  jurisdiction  of  the  Federal  Court  grow- 
ing out  of  its  possession  of  property  may  be  invoked  by  original 
bill  as  well  as  by  intervening  petition. 

Other  cases  to  the  same  point  are  Trust  Co.  v.  Bridges,  6  C.  C. 
A.  539,  57  Fed.  753 ;  Conwell  v.  Canal  Co.,  4  Biss.  195,  Fed.  Cas. 
No.  3,148;  Carey  v.  Railway  Co.,  52  Fed.  671. 

The  bill  of  Knox  and  Jesup  was  therefore  cognizable  by  the 
court  below,  as  ancillary  to  the  litigation  in  which  the  mortgage 
of  the  Central  Trust  Company  and  Cheney,  trustees,  was  fore- 
closed. That,  it  will  be  remembered,  was  a  consolidation  of  the 
insolvency  bill  filed  by  the  Wabash,  St.  Louis  &  Pacific  Railway 
Company  against  the  Central  Trust  Company  and  others,  and  of 
the  foreclosure  bills  of  the  Central  Trust  Company  removed  from 
the  State  court.  Some  claim  is  made  that  the  Federal  Court  had 
no  jurisdiction  to  entertain  the  insolvency  bill,  because  such  a 
proceeding  was  without  precedent.  Whether  precedents  in  equity 
practice  and  jurisprudence  justified  the  bill  was  for  the  decision 
of  the  court  in  which  the  bill  was  filed.  It  cannot  be  reviewed  in 
this  proceeding,  which,  while  dependent  on  that,  and  ancillary 
to  it,  is  collateral  to  it,  in  so  far  as  to  prevent  an  examination  of 
the  correctness  of  the  orders  and  decrees  made  in  it.  Railroad 
Co.  V.  Humphreys,  145  U.  S.  82,  12  Sup.  Ct.  787 ;  Mellen  v.  Iron 
Works,  131  U.  S.  352,  9  .Sup.  Ct.  781.  The  jurisdictional  fact 
upon  which  the  right  of  the  court  below  to  hear  and  determine 
the  cause  of  action  presented  by  Knox  and  Jesup 's  bill  rested  was 
the  pending  possession  by  that  court's  receivers  of  the  property 
sought  to  be  sold  in  foreclosure.  Johnson  v.  Christian,  125  U.  S. 
G42-646,  8  Sup.  Ct.  989,  1135.  It  was  unnecessary  to  look  further, 
for,  even  if  the  order  under  which  that  possession  had  been  taken 
was  irregular  or  erroneous,  Gumbel  v.  Pitken,  Krippendorf  v. 
Hyde,  and  Freeman  v.  Howe,  cited  above,  all  show  that  such  pos- 
.session  would  Impose  upon  the  court  the  duty,  and  would  draw  to 
it  the  jurisdictional  power,  of  granting  any  relief  requiring  for 
its  full  measure  the  possession  aud  control  of  the  property.* 

2  Only    a    pfirtion    (»f    tlm   opinion    is    rcjirintcd. 

For  a  coniparativfly  exhaustive  list  of  cases  in  which  ancillary  jurisdic- 
tion  was   involved,  aee   1    Foster   l'\'deral   Practice    (5th   Ed.)    142-151. — Ed. 


District  Courts  129 

POOLEY  V.  LUCO. 

Circuit  Court,  S.  D.  California.     1896. 

72  Fed.  561. 

Wellborn,  District  Judge.  One  of  the  defendants,  Juan  M. 
Lueo,  pleads  to  the  jurisdiction  of  the  court,  and  the  question 
now  to  be  determined  is  as  to  the  sufficiency  of  this  plea.  The 
suit  is  brought  by  the  complainant,  a  subject  of  Great  Britain, 
against  said  Luco  and  various  other  parties,  alleged  to  be  citizens 
of  the  United  States,  to  foreclose  a  mortgage  executed  by  said 
Luco  and  others  of  the  defendants,  on  certain  real  estate,  situated 
in  the  county  of  San  Diego,  in  the  Southern  district  of  California. 
Said  Luco  denies  that  he  is  a  citizen  of  the  United  States,  and 
alleges  that  he  is  a  citizen  of  Chile,  and  the  duly-appointed  and 
recognized  consul  general  of  Chile  for  the  United  States,  residing 
in  the  city  of  San  Francisco,  State  of  California. 

Jurisdiction,  if  it  exists  at  all,  must  rest  upon  one  or  more  of 
the  following  grounds :  First,  diverse  citizenship  of  the  parties ; 
second,  consular  status  of  defendant  Luco;  third,  location  in  this 
district  of  the  res. — the  mortgaged  property.  These  grounds  I 
will  examine  in  the  order  of  their  statement. 

The  question  whether  or  not  a  Circuit  Court  has  jurisdiction  of 
a  case,  on  the  ground  that  both  parties  are  aliens,  has  been  authori- 
tatively and  often  decided  in  the  negative.  Montalet  v.  Murray, 
4  Cranch  46 ;  Hodgson  v.  Bowerbank,  5  Cranch  304 ;  Prentiss  v. 
Brennan,  Fed.  Cas.  No,  11,385 ;  Jackson  v.  Twentyman,  2  Pet,  136 ; 
Rateau  v.  Bernard,  Fed.  Cas.  No.  11,579;  Hinckley  v,  Byrne,  1 
Deady,  224,  Fed.  Cas,  No,  6,510, 

In  the  last  case,  Deady,  J.,  used  the  following  language: 

"It  has  long  since  been  settled  that  an  action  between  aliens 
cannot  be  maintained  in  the  Circuit  Court ;  that  the  language  of 
the  judiciary  act  giving  jurisdiction  where  'an  alien  is  a  party' 
must  be  restrained  within  the  terms  of  the  Constitution,  which 
only  'extends  the  judicial  power'  to  an  action  between  an  alien 
and  a  citizen  of  a  State  of  the  United  States,  When  both  plaintiff 
and  defendant  are  aliens,  the  judicial  power  of  the  United  States 
does  not  extend  to  the  case." 

The  controversy  in  the  ease  at  bar  being  between  aliens,  there 
is  not  such  diverse  citizenship  as  brings  the  case  within  the  Federal 
jurisdiction,^ 

I  Only  a  portion  of  the  opinion  is  reprinted. — Ed. 
Wheaton  C.  F.  P.— 9 


130  Cases  on  Federal  Procedure 

WILSON  V.  KNOX  COUNTY. 
Circuit  Court,  N.  D.  Missouri,  E.  D.     1890. 
43  Fed.  481. 

Miller,  Justice.  This  ease  is  pending  in  the  northern  division 
of  this  district,  but  by  stipulation  of  counsel  has  been  argued 
before  us  in  the  eastern  division  of  the  district. 

The  question  that  arises  on  the  demurrer  to  the  plea  of  the  juris- 
diction is  whether  the  assignee  of  the  warrants  can  maintain  a 
suit  thereon  in  this  court,  under  the  Judiciary  Act  of  March  3, 
1887,  although  the  original  holder  was  incapacitated  from  main- 
taining such  a  suit.  The  clause  of  the  act  under  which  the  ques- 
tion arises  is  as  follows : 

"Nor  shall  any  Circuit  or  District  Court  have  cognizance  of 
any  suit  except  upon  foreign  bills  of  exchange,  to  recover  the 
contents  of  any  promissory  note  or  other  chose  in  action  in  favor 
of  any  assignee,  or  of  any  subsequent  holder,  if  such  instrument 
be  payable  to  bearer  and  be  not  made  by  any  corporation,  unless 
such  suit  might  have  been  prosecuted  in  such  court  to  recover  the 
said  contents  if  no  assignment  or  transfer  had  been  made." 

The  contention  for  the  plaintiff  is  that  the  court  has  jurisdiction 
of  the  suit  at  bar,  because  the  instruments  sued  upon  are  not 
"payable  to  bearer,"  and  are  "made  by  a  corporation."  This 
we  think  is  an  erroneous  view  of  the  law.  Congress  did  not  intend 
to  give  the  Federal  courts  jurisdiction  of  all  suits  by  assignees  of 
promissory  notes  and  other  choses  in  action,  if  the  assigned  choses 
were  made  by  a  corporation  and  were  not  payable  to  bearer.  That 
construction  would  extend  the  jurisdiction  of  the  Federal  courts, 
without  any  apparent  reason,  over  a  class  of  suits  by  assignees  of 
choses  in  action,  never  before  within  their  jurisdiction,  whereas 
the  main  purpose  of  the  Act  of  1887  seems  to  have  been  to  curtail 
their  jurisdiction.  The  general  rule  enunciated  by  the  statute  is 
that  the  Federal  courts  shall  not  have  jurisdiction  of  a  suit  by 
an  assignee  "of  a  promissory  note  or  otlier  ehose  in  action,"  when 
the  assignor  could  not  maintain  such  a  suit.  The  clause,  "if  such 
instrument  be  payable  to  hearer  and  be  not  made  l)y  any  corpora- 
tion," operates  as  an  excei)tion  to  the  general  rule,  and  gives  the 
Federal  courts  jurisdiction  of  those  suits  by  assignees,  where  the 
action  is  founded  on  an  obligation,  made  by  a  corporation,  that 
i.s  payable  to  brarcr,  and  is  negotiable  by  mere  delivery.     In  the 


District  Courts  131 

light  of  the  previous  legislation  on  the  subject,  our  view  is  that 
Congress  intended  by  the  Act  of  March  3,  1887,  to  prohibit  suits 
in  the  Federal  Court  by  assignees  of  choses  in  action,  unless  the 
original  assignor  was  entitled  to  maintain  the  suit,  in  all  cases 
except  suits  on  foreign  bills  of  exchange,  and  except  suits  on 
promissory  notes  made  paj^able  to  bearer  and  executed  by  a  cor- 
poration. Construed  in  this  way,  the  Act  of  1887  operates  to 
restrict  to  some  extent  the  jurisdiction  exercised  under  the  Act 
of  March  3,  1875,  which  was  probably  the  intention  of  the  law- 
maker. The  instruments  sued  upon  in  this  instance,  though  exe- 
cuted by  a  quasi  corporation,  are  not  payable  to  bearer,  and  are 
not  even  negotiable  instruments  under  the  law  merchant.  It  fol- 
lows, therefore,  that  an  assignee  of  the  warrants  in  question  has 
no  greater  right  to  sue  in  this  court  than  the  original  payee,  and 
the  demurrer  to  the  plea  will  be  overruled. 

The  views  we  have  expressed  are  also  entertained  in  other  cir- 
cuits and  districts.  Vide  Negass  v.  New  Orleans,  33  Fed.  Rep. 
196;  Rollins  v.  Chaffee  Co.,  34  Fed.  Rep.  91.* 


CONN.  V.  CHICAGO,  B.  AND  Q.  R.  CO. 

Circuit  Court,  S.  D.  Iowa,  W.  D.     1891. 
48  Fed.  177. 

At  Law.  Action  by  J.  W,  Conn  against  the  Chicago,  Burling- 
ton &  Quincy  Railroad  Company  for  overcharges  in  freight,  the 
claims  having  been  assigned  to  him  by  the  original  owners.  On 
plea  in  abatement  to  the  jurisdiction  and  the  evidence  thereon. 
Plea  overruled. 

Shiras,  J.  This  action  was  brought  originally  in  the  District 
Court  of  Mills  County,  Iowa,  and  was  thence  removed  to  this 
court  upon  the  application  of  the  defendant  corporation,  on  the 
ground  of  diverse  citizenship,  it  being  averred  in  the  petition  for 
removal  that  the  plaintiffs,  when  the  suit  was  brought,  and  ever 
since,  were,  and  have  continued  to  be,  citizens  of  Nebraska,  and 
the  defendant  was  and  is  a  corporation  created  under  the  laws 

1  As  to  the  time  when  there  must  be  diversity  of  citizenship  between  the 
original  parties  to  the  chose  in  action  in  order  to  give  the  assignee  the  right 
to  sue  the  original  obligor  in  the  federal  court,  see  Thaxter  v.  Hatch,  23 
Fed.  Cas.  No.  13866,  p.  897,  6  McLean,  68  (1853.)— Ed. 


132  Cases  on  Federal  Procedure 

of  the  State  of  Illinois.  The  petition  in  the  action  contains  a  large 
number  of  counts,  each  one  being  based  upon  an  alleged  over- 
charge for  freight  shipped  over  the  defendant's  line  of  railroad 
by  a  number  of  individuals  or  firms,  vsrhose  claims  for  damages 
for  such  alleged  overcharges  have  all  been  assigned  and  trans- 
ferred to  the  plaintiffs. 

The  first  question  arising  upon  the  record  is  whether,  under  the 
statute  now  in  force,  an  action  based  upon  assigned  claims  of  this 
kind  can  be  removed  from  a  state  to  the  Federal  Court,  regardless 
of  the  citizenship  of  the  assignors  of  the  claims,  or  whether  it  is 
necessary,  to  sustain  the  jurisdiction,  that  it  appear  on  the  face 
of  the  record  that  the  assignors  of  the  claims,  as  well  as  the 
assignees,  are,  and  were  when  the  suit  was  brought,  citizens  of  a 
state  or  states  other  than  that  of  the  defendant.  The  proviso  in 
the  Amendatory  Act  of  August  13,  1888,  is  that  the  United  States 
Circuit  Court  shall  not — 

"Have  cognizance  of  any  suit,  except  upon  foreign  bills  of 
exchange,  to  recover  the  contents  of  any  promissory  note  or  other 
chose  in  action  in  favor  of  any  assignee,  or  of  any  subsequent 
holder,  if  such  instrument  be  paj^able  to  bearer,  and  be  not  made 
by  any  corporation,  unless  such  suit  might  have  been  prosecuted 
in  such  court  if  no  such  assignment  or  transfer  had  been  made." 

The  limitation  thus  enacted  in  regard  to  suits  upon  assigned 
causes  of  action  is  expressly  confined  to  those  brought  to  recover 
the  contents  of  a  promissory  note  or  other  chose  in  action ;  and  in 
Ambler  v.  Eppinger,  137  U.  S.  480,  11  Sup.  Ct.  Rep.  173,  it  is 
held  that  the  phrase  "chose  in  action"  cannot  be  construed  to 
include  rights  of  action  founded  on  some  wrongful  act  or  some 
neglect  of  duty,  causing  damage,  but  must  be  limited  to  suits 
founded  upon  contracts  containing  within  themselves  some  prom- 
ise or  duty  to  be  performed.  In  Deshler  v.  Dodge,  16  How.  622, 
and  Bushnoll  v.  Kenned.y,  9  Wall.  387,  the  same  construction  was 
given  to  the  similar  phrase  found  in  the  eleventh  section  of  the 
Act  of  1789 ;  so  that  it  is  thus  clearly  decided  by  the  Supreme 
Court  that  the  limitation  found  in  the  act  of  1888,  and  already 
cited,  cannot  be  made  applicable  to  claims  of  the  nature  of  those 
declared  on  in  the  present  action,  which  are  for  damages  result- 
ing from  the  alleged  violation  of  the  duty  imposed  upon  the  rail- 
way company  to  charge  only  legal  rates  for  the  transportation  of 
property  over  its  line  of  railway.^ 

1  Only  a  liortion  of  tlif  o|iinioM  is  r('|iriiif('fl. — Ed. 


District  Courts  13o 

POWER  AND  IRRIGATION  CO.  v.  CAPAY  DITCH  CO. 

Circuit  Court  of  Appeals,  Ninth  Circuit.     1915. 

226  Fed.  634,  141  C.  C.  A.  390. 

The  Central  Land  Company  gave  certain  notes  to  the  Capay 
Ditch  Company  in  return  for  a  loan  on  November  13th,  1907.  To 
secure  the  payment  of  these  notes  it  also  gave  the  latter  company 
a  deed  to  land  vi^hich,  on  its  face,  was  absolute.  All  those  ever 
obtaining  rights  under  the  deeds  knew  what  the  facts  were.  The 
plaintiff  is  the  successor  in  interest  of  the  grantor.  The  Statute 
of  Limitations  having  run  against  the  note  and  deed,  which,  ac- 
cording to  the  law  of  California  where  the  land  lay,  had  only  the 
efiPect  of  a  mortgage,  the  plaintiff  now  wishes  to  quiet  title  to 
the  land  covered  by  the  deed.  The  original  mortgagor  and  mort- 
gagee, as  well  as  all  of  the  defendants  other  than  the  said  mort- 
gagee were  citizens  of  California.  The  plaintiff  was  a  citizen  of 
Arizona.^ 

Gilbert,  Circuit  Judge  (concurring). — In  its  essential  features 
the  cause  of  suit  pleaded  in  the  complaint  is  one  to  quiet  title  to 
real  estate.  The  plaintiff  has  acquired  by  conveyance  the  title  to 
land  which  its  predecessor  in  interest  had  subjected  to  a  mortgage. 
The  mortgage  lien  has  expired  by  limitation,  but  the  deed,  which 
was  intended  as  a  mortgage,  and  the  subsequent  conveyances  of 
the  land  constitute  a  cloud  upon  the  plaintiff's  title.  The  plaintiff 
must,  in  equity,  pay  the  mortgage  debt  in  order  to  obtain  the  relief 
which  it  seeks.  Its  right  to  seek  and  obtain  that  relief  does  not 
depend,  however,  upon  an  assigned  chose  in  action,  but  upon  a 
deed  of  real  estate.  Said  the  court  in  Brown  v.  Fletcher,  235  U.  S. 
589,  35  Sup.  Ct.  154,  59  L.  Ed.  374: 

"There  was  no  intent  to  prevent  assignees  and  purchasers  of 
property  from  maintaining  an  action  in  the  Federal  Court  to 
recover  such  property,  even  though  the  purchaser  was  an  assignee 
and  the  deed  might,  in  a  sense,  be  called  a  chose  in  action.  *  *  * 
Assuming  that  the  transfer  was  not  colorable  or  fraudulent,  the 
Federal  statutes  have  always  permitted  the  vendee  or  assignee  to 
sue  in  the  United  States  courts  to  recover  property  or  an  interest 
in  property  when  the  requisite  value  and  diversity  of  citizen- 
ship existed." 

1  The  facts  have  been  abbreviated. — Ed. 


134  Cases  on  Federal  Procedure 

The  decision  in  that  case  is  authority  also  for  the  proposition 
that  section  24  of  the  Judicial  Code  was  not  intended  to  bring 
about  any  change  in  the  law,  but  was  intended  merely  as  a  con- 
tinuation of  the  existing  statute.    Said  the  court: 

"In  continuing  the  statute  Congress  also  carried  forward  the 
construction  that  the  restriction  on  jurisdiction  applied  to  suits 
for  damages  for  breach  of  contract,  but  did  not  apply  to  suits  for 
a  breach  of  things." 

That  statute  has  been  held  applicable  to  cases  where  the  plain- 
tiff has  acquired  by  assignment  the  right  to  foreclose  a  mortgage 
(Sheldon  v.  Sill,  8  How.  411,  12  L.  Ed.  1147;  Blacklock  v.  Small, 
127  U.  S.  96,  8  Sup.  Ct.  1096,  32  L.  Ed.  70;  Kolze  v.  Hoadley, 
200  U.  S.  76,  26  Sup.  Ct.  220,  50  L.  Ed.  377),  and  to  suits  to 
compel  specific  performance  of  a  contract  (Plant  Investment  Co. 
V.  Key  West  Railway,  152  U.  S.  71,  14  Sup.  Ct.  483,  38  L.  Ed.  358 ; 
Shoecraft  v.  Bloxham,  124  U.  S.  730,  8  Sup.  Ct.  686,  31  L.  Ed.  574; 
Deshler  v.  Dodge,  16  How.  622,  14  L.  Ed.  1084)  but  not  to  actions 
to  recover  the  possession  of  a  specific  chattel  or  damages  for  its 
wrongful  caption  or  detention  (Deshler  v.  Dodge,  16  How.  622,  14 
L.  Ed.  1084;  Ambler  v.  Eppinger,  137  U.  S.  480,  11  Sup.  Ct.  173, 
34  L.  Ed.  765 ;  Buckingham  v.  Dake,  112  Fed.  258,  50  C.  C.  A. 
492),  nor  to  actions  arising  upon  breach  or  performance  of  a 
contract,  occurring  after  its  assigment  (American  Colortype  Co. 
V.  Continental  Co.,  188  U.  S.  104,  23  Sup.  Ct.  265,  47  L.  Ed.  404; 
Paige  V.  Town  of  Rochester  (C.  C.)  137  Fed.  663;  Oak  Grove 
Const.  Co.  v.  eTefferson  County,  219  Fed.  858,  135  C.  C.  A.  528). 

Said  the  court  in  Corbin  v.  County  of  Black  Hawk,  105  U.  S. 
659,  665,  26  L.  Ed.  1136: 

"The  contents  of  a  contract,  as  a  chose  in  action,  in  the  sense 
of  section  629,  are  the  rights  created  by  it  in  favor  of  a  party  in 
whose  behalf  stipulations  are  made  in  it  which  he  has  a  right  to 
enforce  in  a  suit  to  recover  such  contents." 

And  the  court  further  said: 

"The  obligation  or  the  promise  contained  in  a  contract  is  its 
contents,  when  suit  is  brought  to  enforce  such  obligation." 

And  while  the  court  in  that  case  held  that  the  promise  to  receive 
money  stipulated  in  a  contract  to  bo  paid  by  purchasers  of  land 
as  a  foundaf  ion  for  their  right  to  receive  title  thereto  is  the  essence 
of  the  contract,  and  that  a  suit  to  compel  the  acceptance  of  that 
money  is  a  suit  to  enforce  such  promise,  therefore  is  a  suit  to 
recover  the  contents  of  the  contract,  that  principle  does  not  apply 
to  the  present  case,  for  the  reason  that  here  there  is  no  existing 


[District  Courts'  '  135 

promise  or  contract  to  pay  the  mortgage  debt.  If  there  is  an 
obligation  upon  the  plaintiff  to  pay  that  debt,  it  rests,  not  upon  a 
contract  to  pay  it,  but  it  is  imposed  as  a  condition  for  obtaining 
thd  desired  relief  pursuant  to  a  principle  of  equity  which  requires 
that  the  plaintiff,  while  seeking  relief,  shall  do  that  which  justice 
requires  of  it,  the  pajnnent  of  a  debt,  although  the  obligation  to 
pay  it  has  expired  by  limitation,  and  could  not  be  enforced  at 
law.  Raynor  v.  Drew,  72  Cal.  308,  13  Pac.  866;  Baker  v.  Fire- 
man's Fund  Ins.  Co.,  79  Cal.  34,  21  Pac.  357;  Hall  v.  Arnott,  80 
Cal.  348,  22  Pac.  200.^ 


AMBLER  V.  EPPINGER. 

Supreme  Court  of  the  United  States.     1890. 

137  v.  S.  480,  11  Sup.  Ct.  173,  34  L,  Ed.  765. 

The  plaintiff  was  the  assignee  of  one  Russell  of  the  right  the 
latter  had  against  the  defendants  for  cutting  down  trees  on  the 
lands  of  the  plaintiff  and  Russell.  The  record  showed  that  the 
plaintiff  was  a  citizen  of  New  York,  and  that  the  defendants  were 
citizens  of  Florida.    It  failed  to  disclose  the  citizenship  of  Russell.^ 

Mr.  Justice  Field,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

The  record  is  silent  as  to  the  citizenship  of  Russell,  who  assigned 
his  interest  to  the  plaintiff ;  and  the  defendants  below,  the  plaintiffs 
in  error  here,  contend  that  the  Circuit  Court  was  therefore  ex- 
cluded by  the  act  of  March  3,  1887,  from  jurisdiction  of  the  action, 
it  not  appearing  that  he  could  have  prosecuted  in  the  Circuit 
Court  a  suit  upon  a  claim.  That  act,  after  declaring  in  its  first 
section  that  certain  suits  shall  not  be  brought  in  the  Circuit  or 
District  courts,  adds:  "Nor  shall  any  Circuit  or  District  Court 
have  cognizance  of  any  suit,  except  upon  foreign  bills  of  exchange, 
to  recover  the  contents  of  any  promissory  note  or  other  chose  in 
action,  in  favor  of  any  assignee,  or  of  any  subsequent  holder,  if 
such  instrument  be  payable  to  bearer  and  be  not  made  by  any 
corporation,  unless  such  suit  might  have  been  prosecuted  in  such 

2  A  concurring  opinion   by   Judge   Ross   is   omitted. 

Compare  Aggers  v.  Shaffer,  256  Fed.  648,  648-649,  168  C.   C.  A.  42,  42-43 
(1919);   Harlan  v.  Houston,  258  Fed.  611,  612-613   (1919).— Ed. 
1  The   facts  are  restated. — Ed. 


136  Cases  on  Federal  Procedure 

court  to  recover  the  said  contents  if  no  assignment  or  transfer  had 
been  made."    24  Stat.  c.  373,  pp.  552,  553. 

This  act,  as  appears  on  its  face,  does  not  embrace,  within  its 
exceptions  to  the  jurisdiction  of  those  courts,  suits  by  an  assignee 
upon  claims  like  the  demand  in  controversy.  The  exceptions, 
aside  from  suits  on  foreign  bills  of  exchange,  are  limited  to  suits 
on  promissory  notes  and  other  choses  in  action,  where  the  demand 
sought  to  be  enforced  is  represented  by  an  instrument  in  writing, 
payable  to  bearer,  and  not  made  by  a  corporation,  the  words  fol- 
lowing the  designation  of  choses  in  action  indicating  the  manner 
in  which  they  are  to  be  shown.  They  must  be  such  as  arise  upon 
contracts  of  the  original  parties,  and  not  founded,  like  the  one 
in  controversy,  upon  a  trespass  to  property. 

The  construction  given  by  this  court  in  Deshler  v.  Dodge,  16 
How.  622,  to  the  clause  in  the  eleventh  section  of  the  Judiciary 
Act,  which  denied  to  any  Circuit  or  District  Court  ' '  cognizance  of 
any  suit  to  recover  the  contents  of  any  promissory  note  or  other 
chose  in  action,  in  favor  of  an  assignee,  unless  a  suit  might  have 
been  prosecuted  in  such  court  to  recover  the  said  contents  if  no 
assignment  had  been  made,  except  in  cases  of  foreign  bills  of 
exchange,"  is  in  harmony  wath  the  construction  we  give  to  the 
act  of  1887.  It  was  there  held  that  the  exception  by  that  section 
of  the  jurisdiction  of  those  courts  of  suits  by  an  assignee  did  not 
extend  to  a  suit  on  a  chose  in  action  to  recover  possession  of  a 
specific  chattel  or  damages  for  its  wrongful  caption  or  detention, 
although  the  assignee  could  not  himself  sue  in  that  court.  And  in 
the  Kubscfiuent  case  of  Bushnell  v.  Kenned}',  9  Wall.  387,  it  was 
said  that  the  exceptions  to  the  jurisdiction  applied  only  to  rights 
of  action  founded  on  contracts  which  contained  within  them- 
selves some  promise  or  duty  to  be  performed,  and  not  to  mere 
naked  rights  of  action  founded  on  some  wrongful  act  or  some 
neglect  of  duty  to  which  the  law  attaches  damages.*^ 


LOEB   V.   COLUMBIA   TOWNSHIP   TRUSTEES. 

Supreme  Court  of  the  United  States.     J 900. 

17!>  JJ.  S.  473,  21  S.  Ct.  17  i,  ir,  Ij.  Ed.  280. 

This  action   w.is  brouj;b1    in   tlic  coiiit    liclovv  by  Loeb,  a  citizen 
of  lii(li;iiiii,  a^iiiiist  llic  'I'nislccs  of  ('()lmiil)i;i  Township  in  Hainil- 

2  Only    a    portion    of    the    opinion    is   rt'printctl. — Ed. 


District  Courts  137 

ton  County,  Ohio.  The  petition  did  not  show  that  the  plaintiff 
was  the  original  holder  of  the  bonds  sued  on.  It  was  objected  that 
the  court  had  not  jurisdiction  of  the  action  if  the  plaintiff  was 
an  assignee  or  subsequent  holder  of  the  bonds,  for  they  were  pay- 
able to  bearer,  and  were  not  made  by  a  corporation.^ 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court     *     *     * 

II.  One  of  the  questions  arising  upon  the  record  is  whether  the 
defendant  township  is  a  corporation  within  the  meaning  of  the 
clause  of  the  Judiciary  Act  of  August  13,  1888,  c.  866,  25  Stat. 
433,  434,  §  1,  which  excludes  from  the  cognizance  of  a  Circuit 
or  District  Court  of  the  United  States  "any  suit,  except  upon 
foreign  bills  of  exchange,  to  recover  the  contents  of  any  prom- 
issory note  or  other  chose  in  action  in  favor  of  any  assignee, 
or  of  any  subsequent  holder,  if  such  instrument  be  payable  to 
bearer  and  be  not  made  by  any  corporation,  unless  such  suit 
might  have  been  prosecuted  in  such  court  to  recover  the  said  con- 
tents if  no  assignment  or  transfer  had  been  made. ' '  This  question 
affects  the  jurisdiction  of  the  Circuit  Court  to  take  cognizance 
of  this  case. 

When  the  act  of  1888  was  passed  it  M^as  the  established  law  that 
a  municipal  corporation  created  under  the  laws  of  a  State  with 
power  to  sue  and  be  sued  and  to  incur  obligations  was  to  be  deemed 
a  citizen  of  that  State  for  purposes  of  suit  by  or  against  it  in  the 
courts  of  the  United  States.  In  Cowles  v.  Mercer  County,  7  Wall. 
118,  122,  this  court  said:  "It  is  enough  for  this  case  that  we  find 
the  Board  of  Supervisors  (of  the  county)  to  be  a  corporation 
authorized  to  contract  for  the  county.  The  power  to  contract  with 
citizens  of  other  States  implies  liability  to  suit  by  citizens  of  other 
States,  and  no  statute  limitation  of  suability  can  defeat  a  jurisdic- 
tion given  by  the  Constitution."  Lincoln  County  v.  Luning,  133 
U.  S.  529,  531 ;  McCoy  v.  Washington  Co.,  3  Wall,  Jr.  C.  C.  R. 
381,  384;  Dillon's  Removal  of  Causes,  §  105.  We  perceive  nothing 
in  that  act  indicating  any  purpose  of  Congress  to  exclude  from 
the  jurisdiction  of  the  Circuit  Courts  of  the  United  States  suits 
by  or  against  municipal  corporations  having  authority  by  the  laws 
creating  them  to  sue  or  to  incur  liabilities  in  their  corporate  name. 
It  must  therefore  be  taken  that  the  words  "any  corporation"  in 
the  act  of  1888  include  municipal  as  well  as  private  corporations. 
And  it  is  the  settled  law  of  Ohio  that  a  township  is  suable  on 

1  The  facts  are  restated. — Ed. 


138  Cases  on  Federal  Procedure 

account  of  having  liabilities  incnrred  by  it.  Harding  v.  Trustees 
of  New  Haven  Township,  3  Ohio  227 ;  Trustees  of  Concord  Town- 
ship V.  IVIiller,  5  Ohio  184;  Wilson  v.  Trustees  of  No.  16,  8  Ohio 
174.  Now  by  the  statutes  of  Ohio  the  defendant  township  was 
constituted  a  body  politic  and  corporate  for  the  purpose  of  en- 
joying and  exercising  the  rights  and  privileges  conferred  upon  it 
b}^  law,  and  was  made  capable  of  suing  and  being  sued,  pleading 
and  being  impleaded.  1  Bates'  Anno.  Stat.  Ohio,  §1376.  It  was 
created  for  purposes  of  local  administration,  and  is  a  corporation. 
Fairfield  Township  v.  Ladd,  26  Ohio  St.  210,  213 ;  Lane  v.  State, 
39  Ohio  St.  312.  As  therefore  the  bonds  in  suit  were  executed  by 
the  defendant  township,  a  corporation,  and  are  payable  to  bearer, 
the  present  holder,  being  a  citizen  of  a  State  different  from  that 
of  which  the  township  was  a  corporation,  was  entitled  to  sue  upon 
them  without  reference  to  the  citizenship  of  any  prior  holder. 
Thompson  v.  Perrine,  106  U.  S.  589,  592-3.  This  point  was  prop- 
erly decided  for  the  plaintiff.^ 


WHITE  V.  VERMONT  AND  MASSACHUSETTS  RAILROAD 

COMPANY. 

Supreme  Court  of  the  United  States.     1858. 

62  V.  S.  (21  Howard)  575,  16  L.  Ed.  221. 

Mr.  Justice  Nelson  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  the  Circuit  Court  of  the  United  States 
for  the  District  of  Massachusetts. 

The  suit  was  brought  in  the  court  below  by  the  plaintiff  (White) 
against  the  company,  upon  several  bonds  issued  by  the  same. 

The  case  was  presented  to  the  court  upon  an  agreed  state  of 
facts,  and,  among  others,  that  the  bonds  in  question  were  issued 
by  the  company,  in  regular  course,  and  for  a  sufficient  considera- 
tion ;  and  that  payment  had  been  demanded  and  refused.  Coupons 
for  the  accruing  interest,  previous  to  the  maturity  of  the  bonds, 
had  been  duly  paid. 

2  Only    ,1    portion    of    the    opinion    is    reprinted. 

A  county  iH  ronsirierod  a  iorpor.ition  under  the  asaignmont  statute.  Lyon 
County   V.    Koeno    FiveCont   Sav.    Bank,    lOU   Fed.   ;j;<7,   ;i37-3;i8,  40   C.   C.   A. 

aoi.  ;!9i:<92  (looo).— Ed. 


District  Courts  139 

Itwas  further  agreed  that  bonds  of  this  description,  issued  by 
the  company,  were  sold  in  the  market,  and  passed  from  hand  to 
hand  by  delivery,  at  prices  varying  according  to  the  state  of  the 
market;  and  that  those  in  question  were  issued  at  or  about  their 
date,  to  a  person  a  citizen  of  Massachusetts,  and  were  payable  in 
blank,  no  payee  being  inserted;  that  they  came  into  the  hands  of 
the  plaintiff  through  several  intervening  holders,  in  regular 
course ;  and  that  he  then  and  since  lived  in  the  State  of  New  Hamp- 
shire, and,  before  this  suit  was  brought,  filled  up  the  blank  by 
inserting  "Selden  F.  White,  or  order,"  the  name  of  plaintiff, 
without  the  knowledge  or  consent  of  the  defendants. 

The  court  ruled  that  the  suit  could  not  be  sustained,  for  want 
of  jurisdiction. 

The  ground  upon  which  this  ruling  below  is  sought  to  be  main- 
tained is,  that  these  bonds  were  issued  to  citizens  of  Massachusetts ; 
and  as  they  could  not  be  regarded  as  negotiable  instruments,  or, 
if  negotiable,  not  payable  to  bearer,  the  plaintiff  was  disabled  from 
suing  in  the  Federal  Court,  within  the  prohibition  of  the  eleventh 
section  of  the  Judiciary  Act.  (15  Pet.  R.  125  j  2  ib.  318;  3  How. 
574;  8  ib.  441.) 

In  answer  to  this  ground,  we  think  it  quite  clear,  on  looking 
into  the  agreed  state  of  facts,  in  connection  with  the  bonds  and 
the  mortgage  given  to  secure  their  payment,  that  if  was  the  inten- 
tion of  the  company,  by  issuing  the  bonds  in  blank,  to  make  them 
negotiable,  and  payable  to  the  holder,  as  bearer,  and  that  the 
holder  might  fill  up  the  blank  with  his  own  name,  or  make  them 
payable  to  himself  or  bearer,  or  to  order.  In  other  words,  the 
company  intended,  by  the  blank,  to  leave  the  holder  his  option  as 
to  the  form  or  character  of  negotiability,  without  restriction.  If 
the  utmost  latitude,  in  this  respect,  was  not  intended,  why  leave 
the  payee  in  blank  when  issuing  the  bonds,  or  why  not  fix  the 
limit  of  negotiability,  or  negative  it  altogether?  To  adopt  any 
other  conclusion  would  seem  to  us  to  be  unjust  to  the  company, 
for  then  the  blank  would  be  wholly  unmeaning ;  or  if  any,  a  mean- 
ing calculated,  if  not  intended,  to  embarrass  the  title  of  the  holder. 

Assuming,  then,  that  these  bonds  were  intended  to  be  made 
negotiable,  we  do  not  see  the  difficulty  suggested  in  maintaining 
the  suit  in  the  Federal  Court ;  for,  until  the  plaintiff  chose  to  fill 
up  the  blank,  he  is  regarded  as  holding  the  bonds  as  bearer,  and 
held  them  in  this  character  till  made  payable  to  himself  or  order. 


140  Cases  on  Federal  Procedure 

At  that  time  he  was  a  citizen  of  New  Hampshire,  and,  therefore, 
competent  to  bring  the  suit  in  the  court  below.^ 


BUCKNER  V.  FINLEY  &  VAN  LEAR. 
Supreme  Court  of  the  United  States.     1829. 
27  U.  S.  (2  Peters)  586,  7  L.  Ed.  528. 

Mr.  Justice  Washington  delivered  the  opinion  of  the  court.^ 

This  is  an  action  of  assumpsit  founded  on  a  bill  of  exchange 
drawn  at  Baltimore,  in  the  State  of  Maryland,  upon  Stephen 
Dever  at  New  Orleans,  in  favor  of  R.  L.  Colt,  a  citizen  of  Mary- 
land, who  endorsed  the  same  to  the  plaintiff,  a  citizen  of  New  York. 
The  action  was  brought  in  the  Circuit  Court  of  the  United  States 
for  the  District  of  Maryland ;  and  upon  a  case  agreed,  stating  the 
above  facts,  the  judges  of  that  court  were  divided  in  opinion, 
whether  they  could  entertain  jurisdiction  of  the  cause  upon  the 
ground  insisted  upon  by  the  defendant's  counsel,  that  the  bill  was 
to  be  considered  as  inland.  The  difficulty  which  occasioned  the 
adjournment  of  the  cause  to  this  court,  is  produced  by  the  eleventh 
section  of  the  Judiciary  Act  of  1789,  which  declares,  that  no  Dis- 
trict or  Circuit  CourJ  shall  have  ''cognizance  of  any  suit  to  recover 
the  contents  of  any  promissory  note,  or  other  chose  in  action  in 
favor  of  an  assignee,  unless  a  suit  might  have  been  prosecuted  in 
such  court  to  recover  the  said  contents,  if  no  assignment  had  been 
made,  except  in  cases  of  foreign  bills  of  exchange." 

1 A  portion  of  the  opinion,  which  held  that  the  bonds  involved  in  this 
action    were    negotiable,    is    omitted. 

Bonds  payable   to  " or  order"  were  held  to  be  bearer  bonds.     Lyon 

County  V.  Kecne  Five-Cent  Sav.  Bank,  100  Fed.  S.'i?,  337-338,  40  C.  C.  A. 
391,  391-392    (1900). 

Coupons  from  county  bonds  payable  to  boarer  when  detached  from  the 
boiids  wliii'li  arc  jiayablc  to  tlic  order  of  specific  jicrsons  are  treated  as  bearer 
in.HtruMMTits.  Hcynolds  v.  Lyon  County,  97  Fed.  If).!,  157  (1899).  But  see 
Clarke  V.  .lanesvijlc,  .'3  Fed.  Cas.  No.  2,854,  j).  962,  1  Bissell.  98   (1856). 

(•oriij.are   Thomson   v.   Town  of   Ktton,   100   Fed.    145    (1900). 

Sec  also  Towne  v.  Smith,  24  Fed.  Cas.  No.  14,115,  p.  93,  95,  1  Woodbury 
&  Minot,  115,  119  (1846);  Bonafce  v.  Williams,  44  U.  S.  (3  Howard) 
574,  577,  11  L.  Kd.  732,  733  (1845);  Bank  of  British  North  America  v. 
Barling;,  40  Fed.  :!57  (1891);  Thompson  v.  Searcy  County,  57  Fed.  1030, 
1036,  6  C.  C.  A.  G74,  680,  12   (I.   S.   A|.|i.   618,  628   "(1893).— Ed. 

8  The   factB  are  omitted.— Ed. 


District  Courts  141 

The  only  question  is,  whether  the  bill  on  which  the  suit  is' 
founded,  is  to  be  considered  a  foreign  bill  of  exchange. 

It  is  to  be  regretted  that  so  little  aid  in  determining  this  ques- 
tion is  to  be  obtained  from  decided  cases,  either  in  England  or  in 
the  United  States. 

Sir  William  Blackstone,  in  his  Commentaries,^  distinguishes 
foreign  from  inland  bills,  by  defining  the  former  as  bills  drawn 
by  a  merchant  residing  abroad  upon  his  correspondent  in  England, 
or  vice  versa ;  and  the  latter  as  those  drawn  by  one  person  on 
another,  when  both  drawer  and  drawee  reside  within  the  same 
kingdom.  Chitty,  p.  16,  and  the  other  writers*  on  bills  of  ex- 
change are  to  the  same  effect ;  and  all  of  them  agree,  that  until 
the  statutes  of  8  and  9  W.  III.  ch.  17,  and  3  and  4  Anne,  ch.  9, 
which  placed  these  two  kinds  of  bills  upon  the  same  footing,  and 
subjected  inland  bills  to  the  same  law  and  custom  of  merchants 
which  governed  foreign  bills ;  the  latter  were  much  more  regarded 
in  the  eye  of  the  law  than  the  former,  as  being  thought  of  more 
public  concern  in  the  advancement  of  trade  and  commerce. 

Applying  this  definition  to  the  political  character  of  the  several 
States  of  this  Union  in  relation  to  each  other,  we  are  all  clearly 
of  opinion,  that  bills  draw^n  in  one  of  these  States,  upon  persons 
living  in  any  other  of  them,  partake  of  the  character  of  foreign 
bills,  and  ought  so  to  be  treated.  For  all  national  purposes  em- 
braced by  the  Federal  Constitution,  the  States  and  the  citizens 
thereof  are  one,  united  under  the  same  sovereign  authority,  and 
governed  by  the  same  laws.  In  all  other  respects,  the  States  are 
necessarily  foreign  to,  and  independent  of,  each  other.  Their 
constitutions  and  forms  of  government  being,  although  republican, 
altogether  different,  as  are  their  laws  and  institutions.  This  senti- 
ment was  expressed,  with  great  force,  by  the  president  of  the 
Court  of  Appeals  of  Virginia,  in  the  case  of  Warder  v.  Arrell,  2 
Wash.  298 ;  where  he  states,  that  in  cases  of  contracts,  the  laws  of 
a  foreign  country,  where  the  contract  was  made,  must  govern ;  and 
then  adds  as  follows:  "The  same  principle  applies,  though  with 
no  greater  force,  to  the  different  States  of  America;  for  though 
they  form  a  confederated  Government,  yet  the  several  States  retain 
their  individual  sovereignties,  and,  with  respect  to  their  municipal 
regulations,  are  to  each  other  foreign." 

This  character  of  the  laws  of  one  State  in  relation  to  the  others, 

3  Vol.  ii,  467. 
4Bayley,  Kyd. 


142  Cases  on  Federal  Procedure 

is  strongly  exemplified  in  the  particular  subject  under  considera- 
tion; which  is  governed,  as  to  the  necessity  of  protest  and  rate  of 
damages,  by  different  rules  in  the  different  States.  In  none  of 
these  laws,  however,  so  far  as  we  can  discover  from  Griffith's  Law 
Register,  to  which  we  were  referred  by  the  counsel,  except  those 
of  Virginia,  are  bills,  drawn  in  one  State  upon  another,  designated 
as  inland;  although  the  damages  allowed  upon  protested  bills  of 
that  description  are  generally,  and  with  great  propriety,  lower 
than  upon  bills  drawn  upon  a  country  foreign  to  the  United  States, 
since  the  disappointment  and  injury  to  the  holder  must  always  be 
greater  in  the  latter  than  in  the  former  case.  It  is  for  the  same 
reason,  no  doubt,  that,  by  the  laws  of  most  of  the  States,  bills 
drawn  in  and  upon  the  same  State,  and  protested,  are  either 
exempt  from  damages  altogether,  or  the  rate  is  lower  upon  them 
than  upon  bills  drawn  on  some  other  of  the  States. 

The  only  case  which  was  cited  at  the  bar,  or  which  has  come  to 
our  knowledge,  to  show  that  a  bill  drawn  in  one  State  upon  a 
person  in  any  other  of  the  States,  is  an  inland  bill,  is  that  of 
Miller  V.  Hackley,  5  Johns,  Rep,  375.  Alluding  to  this  case,  in 
the  third  volume  of  his  Commentaries,  p.  63,  in  a  note,  Chancellor 
Kent  remarks  very  truly,  that  the  opinion  was  not  given  on  the 
point  on  which  the  decision  rested ;  and  he  adds,  that  it  was  rather 
the  opinion  of  Mr.  Justice  Van  Ness  than  that  of  the  court.  It 
is  not  unlikely,  besides,  that  that  opinion  was,  in  no  small  degree, 
influenced  by  what  is  said  by  Judge  Tucker  in  a  note  to  2  Black. 
Com.  467 ;  which  was  much  relied  upon  by  one  of  the  counsel  in 
the  argument,  where  the  author  would  appear  to  define  an  inland 
bill,  as  being  one  drawn  by  a  person  residing' in  one  State  on 
another  within  the  United  States.  He  is  so  understood  by  Chan- 
cellor Kent,  in  the  passage  which  has  been  referred  to:  but  this 
is  undoubtedly  a  mistake,  as  the  note  manifestly  refers  to  the  laws 
of  Virginia ;  and  by  an  act  of  that  State,  passed  on  the  28th  day 
of  December,  1795,  it  is  expressly  declared,  that  all  bills  of  ex- 
change drawn  by  any  person  residing  in  that  State,  on  a  person  in 
the  United  States,  shall  be  considered  in  all  cases  as  inland  bills. 
The  case  of  Miller  v.  Hackley,  therefore,  can  hardly  be  considered 
as  an  authority  for  the  position  which  it  was  intended  to  maintain. 
We  think  it  cannot  be  so  considered  by  the  courts  of  New  York, 
since  the  principle  supposed  to  be  decided  in  thi^t  case,  would 
sf-em  to  be  directly  at  variance  with  the  uniform  decisions  of  the 
■ame  courts  upon  the  subject  of  judgments  rendered  in  the  tri- 
Siiiiuls  of  tlie  sister  States.     In  the  case  of  Hitchcock  v.  Aicken, 


District  Courts  143 

1  Caines  460,  all  the  judges  seem  to  have  treated  those  judg- 
ments as  foreign  in  the  courts  of  New  York;  and  the  only  point 
of  difference  between  them  grew  out  of  the  construction  of  the 
first  section  of  the  fourth  article  of  the  Constitution  of  the  United 
States,  and  the  Act  of  Congress  of  the  26th  of  May,  1790,  ch.  38, 
respecting  the  effects  of  those  judgments,  and  the  credit  to  be 
given  to  them  in  the  courts  of  the  sister  States. 

It  would  seem  from  a  note  to  the  case  of  Bartlett  v.  Knight, 
1  Mass.  Rep.  430,  where  a  collection  of  State  decisions  on  the  same 
subject  is  given;  that  these  judgments  had  generally,  if  not  uni- 
versally, been  considered  as  foreign  by  the  courts  of  many  of  the 
States.  If  this  be  so,  it  is  difficult  to  understand  upon  what  prin- 
ciple bills  of  exchange  drawn  in  one  State  upon  another  State 
can  be  considered  as  inland ;  unless  in  a  State  where  they  are 
declared  to  be  such  by  a  statute  of  that  State. 

It  has  not  been  our  good  fortune  to  see  the  ease  of  Duncan  v. 
Course,  1  South  Carolina  Constitutional  Reports,  100;  but  the 
note  above  referred  to  in  3  Kent's  Com.  informs  us,  that  it  decides 
that  bills  of  this  description  are  to  be  considered  in  the  light  of 
foreign  bills;  and  the  learned  commentator  concludes,  upon  the 
whole,  and  principally  upon  the  ground  of  the  decision  just 
quoted;  that  the  weight  of  American  authority  is  on  that  side. 

That  it  is  so,  in  respect  to  the  necessity  of  protesting  bills  of 
that  description,  was  not  very  strenuously  controverted  by  the 
counsel  for  the  defendant.  But  he  insists  that,  under  a  just  con- 
struction of  the  eleventh  section  of  the  judiciary  act,  concerning 
the  jurisdiction  of  the  Federal  courts,  these  bills  ought  to  be  con- 
sidered and  treated  as  inland.  The  argument  is,  that  the  mischief 
intended  to  be  remedied  by  the  provisions  in  the  latter  part  of 
that  section,  by  the  assignment  of  promissory  notes  and  other 
choses  in  action,  is  the  same  in  relation  to  bills  of  exchange  of  the 
character  under  consideration. 

We  are  of  a  different  opinion.  The  policy  which  probably  dic- 
tated this  provision  in  the  above  section,  was  to  prevent  frauds 
upon  the  jurisdiction  of  those  courts,  by  pretended  assignments 
of  bonds,  notes,  and  bills  of  exchange  strictly  inland ;  and  as  these 
evidences  of  debt  generally  concern  the  internal  negotiations  of 
the  inhabitants  of  the  same  State,  and  would  seldom  find  their 
way  fairly  into  the  hands  of  persons  residing  in  another  State; 
the  prohibition  as  to  them  would  impose  a  very  trifling  restriction, 
if  any,  upon  the  commercial  intercourse  of  the  different  States 
with  each  other.     It  is  quite  otherwise  as  to  bills  drawn  in  one 


144  Cases  on  Federal  Procedure 

State  upon  another.  They  answer  all  the  purposes  of  remittances, 
and  of  commercial  facilities,  equally  with  bills  drawn  upon  other 
countries,  or  vice  versa ;  and  if  a  choice  of  jurisdictions  be  import- 
ant to  the  credit  of  bills  of  the  latter  class,  which  it  undoubtedly 
is,  it  must  be  equally  so  to  that  of  the  former. 

Nor  does  the  reason  for  restraining  the  transfer  of  other  choses 
in  action,  apply  to  bills  of  exchange  of  this  description;  which, 
from  their  commercial  character,  might  be  expected  to  pass  fairly 
into  the  hands  of  persons  residing  in  the  different  States  of  the 
Union.  We  conclude  upon  the  whole,  that  in  no  point  of  view 
ought  they  to  be  considered  otherwise  than  as  foreign  bills. 

This  cause  came  on  to  be  heard  on  the  transcript  of  the  record 
from  the  Circuit  Court  of  the  United  States  for  the  district  of 
Maryland,  and  on  the  questions  and  points  on  which  the  judges 
of  the  said  Circuit  Court  were  opposed  in  opinion,  and  which 
were  certified  to  this  Court  for  its  opinion,  and  was  argued  by 
counsel.  On  consideration  whereof,  it  is  the  opinion  of  this  court 
that  the  bill  of  exchange  on  which  this  action  is  brought,  ought 
to  be  considered  as  a  foreign  bill  within  the  meaning  of  the  elev- 
enth section  of  the  Judiciary  Act  of  the  24th  of  September,  1787, 
and  that  the  said  Circuit  Court  has  jurisdiction  of  this  cause; 
whereupon  it  is  considered,  ordered  and  adjudged,  by  this  court, 
that  it  be  certified  to  the  said  Circuit  Court  for  the  district  of 
Marjdand,  that  the  bill  of  exchange  on  which  this  action  is  brought, 
ought  to  be  considered  as  a  foreign  bill,  within  the  meaning  of  the 
eleventh  section  of  the  Judiciary  Act  of  the  24th  of  September, 
1787 ;  and  that  that  court  has  jurisdiction  of  the  cause. 


YOUNG  v.  BRYAN. 

Supreme  Court  of  the  United  States.     1821. 
19  U.  S.  (6  Wheatoii)  146,  5  L.  Ed.  228. 

YjYyoy  to  the  Circuit  Court  of  Tennessee. 

This  was  an  action  of  assumpsit,  brought  in  the  court  below, 
by  tlio  dcl'oiKJants  in  error,  cili/cns  of  Pennsylvania,  against  the 
plaint  id"  in  crtor,  a  citizen  ol"  Tennessee,  as  the  endorser  of  a 
prrimissory  note  diawn  by  anollier  eiti/cMi  of  Tonnossce,  and  en- 
dorsed to  the  [thiinl  id's.     'I'he  only  (pH'stions  in  the  canso  were. 


District  Courts  1-15 

(1)  Whether  the  court  below  had  jurisdiction;  and  (2)  whether 
notice  of  protest  was  necessary  to  charge  the  endorser  in  this  case. 
Judgment  having  been  rendered  against  the  defendant  below,  the 
cause  was  brought  by  writ  of  error  to  this  court. 

Mr.  Chief  Justice  Marshall  delivered  the  opinion  of  the  court, 
that  a  suit  may  be  brought  in  the  Circuit  Court  by  the  endorsee 
against  the  endorser,  whether  a  suit  could  be  there  brought  against 
the  drawer  or  not.  In  such  a  case,  the  endorser  does  not  claim 
through  an  assignment.  It  is  a  new  contract  entered  into  by  the 
endorser  and  endorsee,  upon  which  the  suit  is  brought ;  and  if  the 
endorsee  is  a  citizen  of  a  different  State,  he  may  bring  an  action 
against  the  endorser  in  the  Circuit  Court.^ 


PORTAGE   CITY  WATER  CO.  v.   CITY  OF  PORTAGE. 
Circuit  Court,   W.  D.   Wisconsin.     1900. 
102  Fed.  769. 
On  demurrer  to  complaint  for  want  of  jurisdiction. 

BuNN,  District  Judge. — The  demurrer  to  the  complaint  raises 
an  important  and  interesting  question  of  jurisdiction,  under  that 
clause  of  the  Jurisdiction  Act  of  1887-88  providing  as  follows: 

"Nor  shall  any  Circuit  or  District  Court  have  cognizance  of 
anj''  suit,  except  upon  foreign  bills  of  exchange,  to  recover  the 
contents  of  any  promissory  note  or  other  chose  in  action,  in  favor 
of  any  assignee  or  any  subsequent  holder  *  *  *  unless  such 
suit  might  have  been  prosecuted  in  such  court  to  recover  the  said 
contents,  if  no  assignment  or  transfer  had  been  made."  25  Stat. 
433,  434,  c.  866,  §  1. 

It  appears  by  the  complaint  that  there  was  a  contract  or  fran- 
chise granted  by  the  city  of  Portage,  Wis.,  the  defendant,  to  three 
citizens  of  the  State  of  New  York,  for  the  purpose  of  constructing 
a  system  of  waterworks  for  the  city.  These  New  York  men  who 
held  the  contract  assigned  the  same  to  the  Portage  City  Water- 

1  The   part   of   the   opinion   dealing   with   the    second   question   is   omitted. 

Compare  Phillips  v.  Preston,  46  U.  S.  (5  Howard)  278,  290-291,  12  L.  Ed. 
152,  157  (1847)  ;  Mollan  v.  Torrance,  22  U.  S.  (9  Wheaton)  537,  6  L.  Ed. 
154   (1824).— Ed. 

Wheaton  C.  F.  P.— 10 


146  Cases  on  Federal  Procedure 

works  Company,  a  corporation  presumably  organized  under  the 
laws  of  Wisconsin.  Afterwards  the  plant  constructed  by  the  cor- 
poration went  into  the  hands  of  a  receiver  of  this  court  in  a  suit 
by  the  bondholders  to  foreclose.  The  action  is  brought  by  the 
Portage  City  Water  Company,  a  corporation  organized  and  exist- 
ing under  the  laws  of  the  State  of  Maine,  and  a  citizen  of  that 
State,  against  the  city  of  Portage,  a  municipal  corporation  of 
Wisconsin,  to  recover  the  sum  of  $3,457.50,  with  interest,  being 
the  aggregate  of  several  sums  claimed  to  be  due  upon  a  contract 
for  supplying  the  city  with  water.  The  complaint  alleges:  That 
on  April  8,  1887,  the  defendant  passed  an  ordinance  authorizing 
J.  F.  Moffett,  H.  C.  Hodgkins,  and  J.  V.  Clarke,  all  citizens  of  the 
State  of  New  York,  and  doing  business  under  the  firm  name  of 
IMoffett,  Hodgkins  &  Clarke,  to  construct,  maintain  and  operate 
a  system  of  waterworks  in  the  defendant  city  for  the  purpose  of 
supplying  the  city  and  its  inhabitants  with  water.  That  said 
ordinance  was  duly  passed  and  accepted  by  Moffett,  Hodgkins  & 
Clarke,  and  became  and  is  a  binding  contract.  That  Moffett, 
Hodgkins  &  Clarke  proceeded  with  the  work  of  putting  in  said 
waterworks  plant  pursuant  to  the  contract,  and  began  to  erect  and 
construct  all  necessary  basins,  filtering  galleries,  reservoirs,  water 
towers,  pump  houses,  buildings,  engines,  machinery,  mains,  pipes, 
etc.,  necessary  for  supplying  the  city  with  water.  That  there- 
after, in  the  year  1887,  they  sold  and  assigned  to  the  Portage  City 
Waterworks  Company  all  their  right  and  title  under  the  contract. 
The  citizenship  of  the  Portage  City  Waterworks  Company  is  not 
averred,  but  presumably  it  was  a  Wisconsin  corporation.  By  this 
assignment  all  the  interest  of  said  Moffett,  Hodgkins  &  Clarke  in 
the  contract  passed  to  the  said  last-named  company.  That  said 
Portage  City  Waterworks  Company  went  on  and  completed  the 
waterworks  as  contemplated  b,y  the  said  contract  and  ordinance. 
That  afterwards,  in  April,  1895,  an  action  was  commenced  in  this 
court  by  the  owners  of  bonds  issued  by  the  Portage  City  Water- 
works Company  to  foreclose  a  mortgage  upon  the  water  plant, 
sof'uring  payment  of  the  bonds.  That  under  tliat  foreclosure  one 
Warren  G.  Maxey  was  appointed  receiver  of,  and  became  vested 
with,  the  property.  That  in  January,  1897,  a  sale  of  the  plant 
was  made  by  the  marshal  under  the  foreclosure  proceedings, 
wherein  one  Theodore  C'.  Woodbury  puieliascd  and  became  the 
owner  of  the  platit  jinff  contract  with  the  city.  That  this  sale  was 
confirmefl  by  the  court.  That  said  Woodbury  was  then,  and  still 
is,  a  eiti/en  of  the  St;ite  of  Maine,  ;hk1  entitled  to  l)i-ing  tliis  action. 


District  Courts  147 

That  afterwards,  on  January  27,  1897,  said  "Woodbury  sold  and 
transferred  to  the  plaintiff,  also  a  citizen  of  the  State  of  Maine, 
all  his  interest  in  and  to  the  contract  and  the  waterworks  plant 
constructed  under  it  by  successive  owners,  and  that  the  plaintiff 
is  now  the  lawful  owner  and  holder  of  the  same,  and  entitled  to 
maintain  the  action. 

Under  this  state  of  facts  it  is  claimed  by  the  defendant  that 
under  the  above  clause  of  the  jurisdiction  act  this  court  has  no 
jurisdiction,  in  that,  though  the  requisite  citizenship  exists  be- 
tween the  plaintiff  and  defendant,  the  transfer  to  the  Portage  City 
Waterworks  Company,  who  were  citizens  of  Wisconsin,  prevented 
any  subsequent  holder,  though  a  citizen  of  another  State,  from 
maintaining  the  action  in  the  Federal  Court,  and  that  the  case 
comes  within  the  prohibition  and  exception  of  the  statute.  It  is 
true  that  the  Portage  City  Waterworks  Company,  as  well  as  the 
receiver,  was  a  citizen  of  Wisconsin,  with  the  defendant,  but  the 
original  contracting  parties,  who  owned  the  franchise  and  con- 
tract, were  citizens  of  New  York,  and  competent  to  sue  in  the 
Federal  Court.  This  being  the  case,  the  assignee  of  the  receiver, 
who  was  a  citizen  of  Maine,  and  who  purchased  the  property, 
could  also  bring  action  in  the  Federal  Court.  The  statute  says 
the  court  shall  not  have  cognizance  in  favor  of  any  assignee  unless 
the  suit  might  have  been  prosecuted  in  such  court  if  no  assignment 
had  been  made.  Clearly,  if  no  assignment  had  been  made  of  the 
contract,  the  original  contractees,  who  were  citizens  of  New  York, 
could  have  come  into  the  Federal  Court  to  sue  upon  the  contract. 
That  being  the  case,  there  is  no  reason  why  the  present  holders  of 
the  contract  may  not,  so  long  as  the  requisite  citizenship  exists  to 
give  the  Federal  Court  jurisdiction.  This  statute,  or  the  ones  of 
a  like  character  preceding  it,  has  been  often  before  the  courts  for 
construction;  and  it  has  never  yet  been  held,  either  by  the  Su- 
preme Court,  or,  I  think,  by  any  Circuit  Court,  that  if  these  con- 
ditions existed  the  action  could  not  be  maintained,  because  the 
plaintiff  must  trace  his  title  through  some  intermediate  assignee, 
who  could  not  have  maintained  the  action.  All  the  cases  go  upon 
the  assumption  that  the  intention  of  the  law  was  to  deny  jurisdic- 
tion only  in  case  the  original  payee  or  contractee  was  a  citizen  of 
the  same  State  with  the  defendant,  and  so  could  not  maintain  the 
action  in  the  United  States  courts.  If  the  requisite  citizenship 
existed  between  the  original  parties  to  the  note  or  contract,  so 
that  suit  might  be  maintained  by  the  payee  in  the  Federal  Court, 
any  subsequent  holder  could  maintain  the  action,  provided  he  was 


148  Cases  on  Federal  Procedure 

also  a  resident  of  a  State  other  than  that  where  the  party  defend- 
ant resided.  This,  I  think,  is  as  far  as  the  cases  go.  The  purpose 
of  the  law  was  to  prevent  colorable  assignments  for  the  purpose 
of  giving  jurisdiction  by  paj'ees  or  contractees  who  were  citizens 
of  the  same  State  with  the  other  contracting  party.  But  this 
purpose  does  not  hold  when  by  the  original  contract  the  suit  might 
be  brought  in  the  Federal  Court.^ 


PAIGE  V.  TOWN  OF  ROCHESTER. 

Circuit  Court,  D.  Vermont.     1905. 

137  Fed.  663. 

Wheeler,  District  Judge. — According  to  the  bill,  the  White 
River  Valley  Electric  Railroad  Company  was  chartered  to  build  a 
railroad  from  Rochester  to  Bethel,  was  organized,  and  solicited 
subscriptions  and  aid  for  building  its  road.  The  defendant  town, 
pursuant  to  the  laws  of  the  State,  voted  to  aid  the  project.^ 

Subscriptions  were  made  and  aid  was  voted  sufficient,  with  this, 
to  apparently  warrant  commencement  of  work.  The  road  was 
built  part  way,  the  corporation  failed,  and  a  receiver  of  it  was 
appointed  by  this  court  with  authority  to  complete  the  road,  which 
was  done  in  considerable  part  by  the  assignment  of  this  subsidy 
to  a  contractor,  who  assigned  it  to  the  plaintiff  Williams,  to  secure 
him  for  funds  furnished  by  him  for  the  prosecution  of  the  work, 
of  which  the  defendant  was  notified;  and  an  interest  in  it  has 
since  been  assigned  to  the  plaintiffs  Jose  and  Stiles,  of  which  the 
defendant  has  also  been  notified.  The  bill  is  brought  for  the  recov- 
ery of  the  .subsidy,  and  is  demurred  to  for  lack  of  jurisdiction  and 
want  of  equity. 

Tlio  statutes  of  the  United  States  have  always  provided  that  no 
District  or  Circuit  Court  should  "have  cognizance  of  any  suit  to 
recover  the  contents  of  any  promissory  note  or  other  chose  in 
action  in  favor  of  an  assignee  unless  a  suit  might  have  been  prose- 
cuted in  such  court  to  recover  the  said  contents  if  no  assignment 
had  been  made,"  with  some  exceptions  not  here  material.    1  Stat. 

1  Duly    n    pfirtlon    of    flic    opinion    is    r('|iriiit('(l. — Ed. 

2  Till'  sfMfctiicnf  of  wli.'if   till'  (IcfciHJ.'iiit    town  voted  to  do  is  omitted. — Ed. 


District  Courts  149 

78  c.  20,  §  11 ;  Rev.  St.  629;  25  Stat.  434,  c.  866,  §  1.  The  argu- 
ment in  opposition  to  the  jurisdiction  is  that  the  assignment  of  the 
receiver  was  that  of  the  railroad  corporation,  which  could  not 
have  maintained  a  suit  against  the  defendant  in  this  court,  because 
it  is  a  corporation  and  a  citizen  of  the  same  state  as  the  defendant. 
This  would  be  true,  and  fatal  to  the  jurisdiction,  if  the  cause  of 
action  had  accrued  to  the  railroad  corporation;  but  none  would 
accrue,  under  the  terms  of  the  vote,  until  the  road  should  be  in 
operation.  Concord  v.  Portsmouth  Savings  Bank,  92  U.  S.  625, 
23  L,  Ed.  628.  Before  then  the  right  to  the  subsidy  was  merely 
one  to  obtain  it  by  building  and  equipping  the  road  according 
to  the  terms  of  the  vote.  Williams  as  assignee  had  furnished 
the  money  by  which  this  was  accomplished,  and  the  right  to  the 
subsidy  accrued  to  him,  for  the  benefit  of  himself,  or  the  receiver, 
if  he  should  redeem  Williams'  assignment,  which  has  not  been 
done.  Williams'  cause  of  action  does  not  depend  upon  the  assign- 
ment of  a  chose  in  action  to  him,  but  upon  the  assignment  of  a 
right  to  him  by  which  by  performance  he  acquired  a  chose  in 
action  to  himself.^ 


HOLMES  V.  GOLDSMITH. 

Supreme  Court  of  tlie  United  States.     1892. 

147  V.  8.  150,  13  8.  Ct.  288,  37  L.  Ed.  118. 

This  was  an  action  brought  by  L.  Goldsmith  and  Max  Gold- 
smith, doing  business  as  partners  under  the  name  of  L.  Goldsmith 
&  Co.,  citizens  of  the  State  of  New  York,  against  M.  B.  Holmes, 
John  Dillard  and  R.  Phipps,  citizens  of  the  State  of  Oregon,  as 
makers  of  a  promissory  note,  in  the  words  and  figures  following: 

3  For  other  cases  in  which  it  was  held  that  no  assignment  of  a  chose  in 
action  was  involved,  see  Jewett  v.  Bradford  Sav.  Bank  &  Trust  Co.,  45  Fed. 
801  (1891)  proceeding  in  equity  to  compel  the  transfer  of  corporate  stock; 
Waehusett  Nat.  Bank  v.  Sioux  City  Stove  "Works,  56  Fed.  321  (1893)  payee 
mere  agent  to  transfer;  Smith  v.  Packard,  98  Fed.  793,  796-797,  39  C.  C.  A. 
294,  298-299  (1900)  state  statute  called  plaintiff  an  assignee;  Adams  v. 
Shirk,  105  Fed.  659,  663,  44  C.  C.  A.  653,  657  (1901)  lessor  sued  transferee 
of  lessee;  Stotesbury  v.  Huber,  237  Fed.  413,  416  (1916)  assignee  of  share 
of  estate;  Menasha  Wooden  Ware  Co.  v.  Southern  Oregon  Co.,  244  Fed.  83, 
87,  156  C.  C.  A.  511,  515   (1917)    action  to  recover  money  paid  for  taxes. 

But  see  Sere  v.  Pitot,  10  U.  S.  (6  Cranch)  332,  334-336,  3  L,  Ed.  240,  241 
(1810);  Brainerd,  Shaler  &  Hall  Quarry  Co.  v.  Briee,  250  U.  S.  229,  39  S. 
Ct.  458,  63   L.  Ed.— (1919).— Ed. 


150  Cases  on  Federal  Procedure 

"$10,000.  Portland,  Oregon,  Aug.  9,  1886. 

"Six  months  after  date,  without  grace,  we,  or  either  of  us, 
promise  to  pay  to  the  order  of  W.  F.  Owens  ten  thousand  dollars, 
for  value  received,  with  interest  from  date  at  the  rate  of  ten  per 
cent  per  annum  until  paid,  principal  and  interest  payable  in  U, 
S.  gold  coin,  at  the  first  National  Bank  in  Portland,  Oregon,  and 
in  case  suit  is  instituted  to  collect  this  note  or  any  portion  thereof, 
we  promise  to  pay  such  additional  sum  as  the  court  may  adjudge 
reasonable  as  attorney's  fees  in  said  suit. 

"M.  B.  Holmes, 
"John  Dillard, 
"R.  Phipps." 

On  the  day  of  its  date,  W.  F.  Owens  endorsed  the  note,  waived, 
in  writing,  demand,  notice  and  protest,  delivered  the  note,  so  en- 
dorsed, to  the  agent  of  the  plaintiffs,  and  received  the  sum  of  ten 
thousand  dollars. 

The  complaint  alleged  that  the  transaction  was  a  loan  by  plain- 
tiffs to  W.  F.  Owens;  that  the  defendants  executed  the  note  for 
the  accommodation  of  Owens,  to  enable  him  to  procure  the  loan 
thereon ;  and  that  Owens  was,  in  fact,  a  maker  of  said  note  to  the 
plaintiffs,  and  never  himself  had  any  cause  of  action  thereon 
against  the  defendants. 

To  this  complaint  the  defendants  demurred,  on  the  ground  that 
it  did  not  bring  the  case  within  the  jurisdiction  of  the  Circuit 
Court,  and  did  not  state  facts  sufficient  to  constitute  a  cause  of 
action. 

Upon  argument  this  demurrer  was  overruled.  36  Fed.  Rep.  484. 
The  defendants  answered,  denying  tbe  execution  of  the  note,  and 
knowledge  of  the  other  facts  alleged  in  the  complaint.  At  the 
trial  a  verdict  was  given  in  favor  of  the  plaintiffs  for  the  amount 
of  the  note,  with  interest  from  date,  and  on  June  19,  1889,  judg- 
ment was  entered  on  the  verdict,  in  favor  of  the  plaintiffs  and 
against  the  defendants,  for  the  amount  of  the  note  with  interest 
and  with  costs  and  disbursements. 

A  writ  of  error  was  duly  sued  out  and  allowed,  and  the  case 
brought  into  this  court  for  review.     *     •     * 

Mr.  Justice  Siiiras,  after  .stating  the  case,  delivered  the  opinion 
of  the  court. 

The  complaint  nllogos  the  owner.ship  in  the  plaintiffs  of  a  chose 
in  action;  as  to  tlic  character,  a  promissory  note;  as  to  amorr 
ten  thousand  dollars;  as  to  parties,  the  plaintiffs,  citizens  o^   : 


District  Courts  151 

State  of  New  York,  and  the  defendants,  citizens  of  the  State  of 
Oregon;  thus  bringing  the  case  within  the  jurisdiction  of  a  Cir- 
cuit Court  of  the  United  States,  as  defined  in  the  Constitution. 
.  By  the  demurrer  to  the  complaint  the  defendants  invoked  the 
provision  of  the  Act  of  August  13,  1888,  25  Stat.  433,  434,  c.  866, 
which  is  as  follows : 

"Nor  shall  any  Circuit  or  District  Court  have  cognizance  of  any 
suit,  except  upon  foreign  bills  of  exchange,  to  recover  the  contents 
of  any  promissory  note  or  other  chose  in  action  in  favor  of  any 
assignee  or  of  any  subsequent  holder,  if  such  instrument  be  pay- 
able to  bearer,  *  *  *  unless  such  suit  might  have  been  prose- 
cuted in  such  court  to  recover  the  said  contents  if  no  assignment 
or  transfer  had  been  made." 

Upon  the  face  of  the  complaint,  the  jurisdiction  of  the  Circuit 
Court  was  duly  made  to  appear,  so  far  as  the  requisitions  of  the 
Constitution  apply.  But  it  has  been  held,  in  a  series  of  cases 
beginning  with  Turner  v.  Bank  of  North  America,  4  Dall.  8,  that 
it  is  competent  for  Congress,  in  creating  a  Circuit  Court  and 
prescribing  the  extent  of  its  jurisdiction,  to  withhold  jurisdiction 
in  the  case  of  a  particular  controversy. 

In  pursuance  of  this  view  it  has  been  frequently  held  by  this 
court  that,  in  an  action  in  a  Circuit  Court  of  the  United  States, 
by  an  assignee  of  a  chose  in  action,  the  record  must  affirmatively 
show,  by  apt  allegations,  that  the  assignor  could  have  maintained 
the  action.     *     *     * 

The  defendant  in  error  contends  that  ^  he  can  maintain  his  ac- 
tion by  alleging  and  proving  that  the  nominal  endorser  was  not 
really  such,  but  that  the  note  was  made  by  the  makers  for  his 
accommodation  and  as  his  sureties;  that  he  was,  in  legal  effect,  a 
maker  of  the  note;  that  he  received  the  proceeds  of  the  loan  ef- 
fected through  the  note,  and  had  no  right  of  action  against  the 
nominal  makers  of  the  note ;  and,  hence,  that  he  cannot  be  re- 
garded as  an  assignor  of  a  right  of  action  against  the  makers, 
within  the  true  meaning  of  the  judiciary  act. 

The  learned  judge  who  tried  the  case  below  adopted  the  view 
that  where  it  is  necessary,  to  maintain  the  jurisdiction  of  the  Cir- 
cuit Court  in  an  action  on  a  promissory  note,  to  show  that  the 
plaintiff,  who  appears  to  be  an  endorsee  or  assignee,  is  in  point 

1  The  wording  at  this  point  is  slightly  changed  to  make  the  sentence 
plain,  since  the  actual  wording  refers  to  a  portion  of  the  opinion  which  is 
omitted,  and  would  thus  be  confusing. — Ed. 


152  Cases  on  Federal  Procedure 

of  fact  the  payee  of  the  note,  it  may  be  done,  and  therefore  over- 
ruled the  demurrer. 

Against  this  view  of  the  ease,  the  plaintiffs  in  error  urge  two 
propositions ;  first,  that  it  was  not  competent  for  the  holders  of  the 
note  to  show,  by  allegations  and  evidence,  that  the  relation  of  the 
parties  to  the  note,  as  makers  and  payees,  was  otherwise  than  as 
it  appears  to  be  in  the  phraseology^  of  the  note  itself ;  and,  second, 
that,  assuming  the  plaintiffs'  evidence  to  truly  present  the  facts 
of  the  case,  yet  the  plaintiffs  were  not  thereby  relieved  from  the 
operation  of  that  provision  of  the  law  which  forbids  assignees  from 
maintaining  actions  to  recover  the  contents  of  promissory  notes. 
To  sustain  their  first  objection,  plaintiffs  in  error  cite  numerous 
cases  going  to  show  that  parol  evidence  is  not  admissable  to  vary 
the  contract  of  endorsement,  or  the  agreement  of  the  parties  as 
fixed  under  the  law  by  the  fact  of  endorsement. 

Certainly,  as  against  a  third  party  who  has  become,  in  good 
faith,  the  holder  of  a  promissory  note,  a  defendant,  whether  a 
maker  or  an  endorser,  will  not  be  permitted  to  escape  from  the 
legal  import  of  his  formal  contract  by  an  offer  of  parol  evidence. 
But.  as  between  themselves,  it  has  always  been  held  that  evidence 
showing  the  real  relation  of  the  parties  is  admissable,  because  it 
does  not  change  or  vary  the  contract,  but  shows  what  it  really 
was.  The  defendants'  engagement,  as  to  amount  and  date  and 
place  of  payment,  and  every  other  circumstance  connected  with 
it,  is  left  by  the  evidence  just  what  it  appears  to  be  on  the  face 
of  the  note. 

In  Brooks  v.  Thatcher,  52  Vermont  559,  where  there  was  a  ques- 
tion as  to  whether  a  party  to  a  note  was  principal  or  surety,  Red- 
fip:ld,  J.,  said:  "But  the  real  relation  of  the  parties  to  a  written 
instrument,  whether  as  principal  or  sureties,  may  always  be  shown 
by  parol  evidence." 

Harris  v.  Brooks,  21  Pick.  195,  197,  was  a  suit  wherein  one  of 
two  makers  of  a  note  was  permitted  to  show  that,  though  a  joint 
maker  in  form,  he  was,  in  fact,  surety  for  the  other  maker,  and 
IukI  been  released  by  an  agreement  of  the  holder  that  he  would 
look  to  the  principal;  and  Shaw,  C.  J.,  said:  "The  fact  of  such 
relation,  and  notice  of  it  to  the  holder,  may,  we  think,  be  proved 
by  extrinsic  evidence.  It  is  not  to  affect  the  terms  of  the  con- 
tract, but  to  prove  a  collateral  fact  and  rebut  a  presumption." 

If,  then,  it  was  satisfactorily  shown  that  Owens,  the  nominal 
endorser,  was  really  tlie  party  for  whose  use  the  note  was  made, 
;iik1   that   the   plaintiffs  below   were  the   first  and  only  holders  of 


District  Courts  ]53 

the  note  for  value,  the  next  question  is  whether,  upon  that  state 
of  facts,  they  were  prevented,  by  the  terras  of  the  judiciary  act, 
from  maintaining  an  action  in  the  Circuit  Court. 

'It  is  quite  plain  the  the  plaintiffs'  action  did  not  offend  the 
spirit  and  purpose  of  this  section  of  the  act.  The  purpose  of  the 
restriction  as  to  suits  by  assignees  was  to  prevent  the  making  of 
assignments  of  choses  in  action  for  the  purpose  of  giving  juris- 
diction to  the  Federal  Court. 

Bank  of  Kentucky  v.  Wister,  2  Pet.  318,  326,  was  the  case  of  a 
suit  in  a  Circuit  Court  of  the  United  States  by  a  holder  of  a  bank 
bill  payable  to  individuals  or  bearer,  concerning  which  individuals 
there  was  no  averment  of  citizenship,  and  which,  therefore,  may 
have  been  payable,  in  the  first  instance,  to  parties  not  competent 
to  sue  in  the  courts  of  the  United  States.  But  the  court  held, 
"this  is  a  question  which  has  been  considered  and  disposed  of  in 
our  previous  decisions.  This  court  has  uniformly  held  that  a  note 
payable  to  bearer  is  payable  to  anybody,  and  not  affected  by  the 
disabilities  of  the  nominal  payee." 

In  Bushnell  v.  Kennedy,  9  Wall.  387,  391,  Chief  Justice  Chase, 
in  delivering  the  opinion  of  the  court,  said:  "It  may  be  observed 
that  the  denial  of  jurisdiction  of  suits  by  assignees  has  never  been 
taken  in  an  absolutely  literal  sense.  It  has  been  held  that  suits 
upon  notes  payable  to  a  particular  individual  or  to  bearer  may 
be  maintained  by  the  holder,  without  any  allegation  of  citizen- 
ship of  the  original  payee,  though  it  is  not  to  be  doubted  that 
the  holder 's  title  to  the  note  could  only  be  derived  through  transfer 
or  assignment.  So,  too,  it  has  been  decided,  where  the  assignment 
was  by  will,  that  the  restriction  is  not  applicable  to  the  represen- 
tative of  the  decedent.  And  it  has  also  been  determined  that  the 
assignee  of  a  chose  in  action  may  maintain  a  suit  in  the  Circuit 
Court  to  recover  possession  of  the  specific  thing,  or  damages  for 
its  wrongful  caption  or  detention,  though  the  court  would  have 
no  jurisdiction  of  the  suit  if  brought  by  the  assignors." 

We  do  not  overlook  the  fact  that,  since  the  foregoing  cases  were 
determined.  Congress  has,  in  the  more  recent  judiciary  acts,  still 
further  restricted  the  jurisdiction  of  the  Circuit  courts  by  in- 
cluding in  the  prohibitory  clause  the  case  of  promissory  notes 
payable  to  bearer. 

But  the  reasoning  remains  applicable  in  so  far  as  they  hold  that 
the  language  of  the  statute  is  to  be  interpreted  by  the  purpose  to 
be  effected  and  the  mischief  to  be  prevented. 

We  think  that  the  jurisdiction  of  the  Circuit  Court,  in  the  ease 


154  Cases  on  Federal  Procedure 

before  us,  was  properly  put  by  the  court  below  upon  the  proposi- 
tion that  the  true  meaning  of  the  restriction  in  question  was  not 
disturbed  by  permitting  the  plaintiffs  to  show  that,  notwithstand- 
ing the  terms  of  the  note,  the  payee  was  really  a  maker  or  original 
promisor,  and  did  not,  by  his  endorsement,  assign  or  transfer  any 
right  of  action  held  by  him  against  the  accommodation  makers.^ 


INSURANCE  COMPANY  v.  DUNHAM. 

Supreme  Court  of  the  United  States.     1870. 
78  V.  S.  (11  Wallace)  1,  20  L.  Ed.  90. 

Mb.    Justice    Bradley    delivered    the    opinion    of    the    court. 

•     *     * 

First,  as  to  the  locus  or  territory  of  maritime  jurisdiction ;  that 
is,  the  place  or  territory  where  the  law  maritime  prevails,  where 
torts  must  be  committed,  and  where  business  must  be  transacted, 
in  order  to  be  maritime  in  their  character;  a  long  train  of  de- 
cisions has  settled  that  it  extends  not  only  to  the  main  sea,  but 
to  all  the  navigable  waters  of  the  United  States,  or  bordering  on 
the  same,  whether  land-locked  or  open,  salt  or  fresh,  tide  or  no 
tide.  "Are  we  bound  to  say," — says  Justice  Wayne,  delivering 
the  opinion  of  the  court  in  Waring  v.  Clarke,* — "Are  we  bound 
to  say,  because  it  has  been  so  said  by  the  common  law  courts  of 
England  in  reference  to  the  point  under  discussion,  that  sea  al- 
ways moans  high  sea  or  main  sea?  *  *  *  Is  there  not  a  surer 
foundation  for  a  correct  ascertainment  of  the  locality  of  marine 
jurisdiction  in  the  general  admiralty  law  than  the  designation  of 
it  by  the  common  law  courts?  *  *  *  y^Q  think,  in  the  con- 
troversy between  the  courts  of  admiralty  and  common  law  upon 
the  subject  of  jurisdiction,  that  the  former  have  the  best  of  the 
arguiiicnt ;  that  they  maintain  the  jurisdiction  for  which  they 
contend  witli  moie  learning,  more  directness  of  purpose,  and 
without  any  of  that  verbal  subtility  which  is  found  in  the  argu- 
ments of  their  adversaries." 

It  was  a  long  time,  howciver,  before  Hie  full  extent  of  the  ad- 

2  Only  II  jjortion  of  the  opinion  in  roprintod. — Ed. 
1  r,    Ilr.wfird,   402. 


District  Courts  155 

rairalty  jurisdiction  was  firmly  established.  The  judiciary  act  ex- 
pressly extended  it  to  seizures,  under  laws  of  impost,  navigation, 
or  trade  of  the  United  States,  where  made  on  waters  navigable 
from  the  sea  by  vessels  of  ten  or  more  tons  burden  as  well  as  upon 
the  high  seas,  thus  at  once  ignoring  the  English  rule;  but  for 
sometime  it  was  held  that  the  jurisdiction  could  not  go  further, 
and  that  this  grant  was  confined  to  tide-waters.  But  in  the  case 
of  The  Genesee  Chief,^  decided  in  1851,  it  was  expressly  adjudged 
that  tide  was  no  criterion  of  admiralty  jurisdiction  in  this  coun- 
try; that  it  extended  to  our  great  internal  lakes  and  navigable 
rivers  as  well  as  to  tide-waters.  "It  is  evident,"  says  Chief  Justice 
Taney,*  "that  a  definition  which  would  at  this  day  limit  public 
rivers  in  this  country  to  tide- water  rivers  is  utterly  inadmissible. 
We  have  thousands  of  miles  of  public  navigable  water,  including 
lakes  and  rivers,  in  which  there  is  no  tide.  And  certainly  there 
can  be  no  reason  for  admiralty  power  over  a  public  tide-water 
which  does  not  apply  with  equal  force  to  any  other  public  water 
used  for  commercial  purposes  and  foreign  trade.  The  lakes  and 
the  waters  connecting  them  are  undoubtedly  public  waters,  and, 
we  think,  are  within  the  grant  of  admiralty  and  maritime  juris- 
diction in  the  Constitution  of  the  United  States."  This  judg- 
ment has  been  followed  by  several  cases  since  decided,  and  the 
point  must  be  considered  as  no  longer  open  for  discussion  in  this 
court. 

Secondly,  as  to  contracts,  it  has  been  equally  well  settled  that 
the  English  rule  which  concedes  jurisdiction,  with  a  few  excep- 
tion^, only  to  contracts  made  upon  the  sea  and  to  be  executed 
thereon  (making  locality  the  test)  is  entirely  inadmissible,  and 
that  the  true  criterion  is  the  nature  and  subject-matter  of  the 
contract,  as  whether  it  was  a  maritime  contract,  having  reference 
to  maritime  service  or  maritime  transactions.  Even  in  England 
the  courts  felt  compelled  to  rely  on  this  criterion  in  order  to  sus- 
tain the  admiralty  jurisdiction  over  bottomry  bonds,  although  it 
involved  an  inconsistency  with  their  rules  in  almost  every  other 
case. 

In  Menetone  v.  Gibbons,*  Lord  Kenyon  makes  this  sensible 
remark:  "If  the  admiralty  has  jurisdiction  over  the  subject- 
matter,  to  say  that  it  is  necessary  for  the  parties  to  go  upon  the 
sea  to  execute  the  instrument,  borders  upon  absurdity."    In  that 

2  12   Howard,  443. 

Sid.    457. 

4  3   Term,  269. 


156  Cases  on  Federal  Procedure 

case  there  happened  to  be  a  seal  on  the  bond,  of  which  a  strong 
point  was  made.  Justice  Buller  answered  it  thus:  "The  form 
of  the  bottomry  bond  does  not  vary  the  jurisdiction;  the  ques- 
tion whether  the  court  of  admiralty  has  or  has  not  jurisdiction 
depends  on  the  subject-matter."  Had  these  views  actuated  the 
common  law  courts  at  an  earlier  day  it  would  have  led  to  a  much 
sounder  rule  as  to  the  limits  of  admiralty  jurisdiction  than  was 
adopted.  In  this  court,  in  the  case  of  The  New  Jersey  Navigation 
Company  v.  Merchants'  Bank,"^  which  was  a  libel  in  personam 
against  the  company  on  a  contract  of  affreightment  to  recover  for 
the  loss  of  specie  by  burning  of  the  steamer  Lexington  on  Long 
Island  Sound,  Justice  Nelson,  delivering  the  opinion  of  the  court, 
says :  ®  "If  'the  cause  is  a  maritime  cause,  subject  to  admiralty 
cognizance,  jurisdiction  is  complete  over  the  person  as  well  as 
over  the  ship.  *  *  *  On  looking  into  the  several  cases  in  ad- 
miralty which  have  come  before  this  court,  and  in  which  its  juris- 
diction was  involved,  it  will  be  found  that  the  inquiry  has  been, 
not  into  the  jurisdiction  of  the  court  of  admiralty  in  England, 
but  into  the  nature  and  subject-matter  of  the  contract,  whether 
it  was  a  maritime  contract,  and  the  service  a  maritime  service, 
to  be  performed  upon  the  sea  or  upon  waters  within  the  ebb  and 
flow  of  the  tide."  (The  last  distinction  based  on  tide,  as  we  have 
seen,  has  since  been  abrogated.)  Jurisdiction  in  that  case  was 
sustained  by  this  court,  as  it  had  previously  been  in  cases  of  suits 
by  ship-carpenters  and  material-men  on  contracts  for  repairs,  ma- 
terials, and  supplies,  and  by  pilots  for  pilotage:  in  none  of  which 
would  it  have  been  allowed  to  the  admiralty  courts  in  England.' 
In  the  subsequent  case  of  Morewood  v.  Enequist,®  decided  in  1859, 
which  was  a  case  of  charter-party  and  affreightment,  Justice  Grier, 
who  had  dissented  in  the  case  of  The  Lexington,  but  who  seems 
to  have  changed  his  views  on  the  whole  subject,  delivered  the 
opinion  of  the  court,  and,  amongst  other  things,  said:  "Counsel 
have  expended  much  learning  and  ingenuity  in  an  attempt  to 
demonstrate  that  a  court  of  admiralty  in  this  country,  like  those 
of  England,  has  no  jurisdiction  over  contracts  of  charter-party 
or  affreightment.  They  do  not  seem  1o  deny  that  these  are  maritime 
contracts,  according  to  any  correct  definition  of  the  terms,  but 
rather  rrf|uire  us  to  al)andon  our  whole  course  of  decision  on  this 

6  6    Hdward,    .'iH. 

6  Ih.    .'{92. 

7  Kr-o    cftHCH   cited    by   Justice   Nelson,    6    Howard,    .3!)0,    ,'191. 
B2:{    Howard,  493. 


District  Courts  157 

subject  and  return  to  the  fluctuating  decisions  of  English  common 
law  judges,  which,  it  has  been  truly  said,  'are  founded  on  -no 
uniform  principle,  and  exhibit  illiberal  jealousy  and  narrow  pre- 
judice.' "  He  adds  that  the  court  did  not  feel  disposed  to  be 
again  drawn  into  the  discussion ;  that  the  subject  had  been  thor- 
oughly investigated  in  the  case  of  The  Lexington,  and  that  they 
had  then  decided  "that  charter-parties  and  contracts  of  affreight- 
ment were  'maritime  contracts,'  within  the  true  meaning  and 
construction  of  the  Constitution  and  act  of  Congress,  and  cogniz- 
able in  courts  of  admiralty  by  process  either  in  rem  or  in  per- 
sonam." The  case  of  The  People's  Ferry  Co.  v.  Beers,^  being 
pressed  upon  the  court  in  which  it  had  been  adjudged  that  a  con- 
tract for  building  a  vessel  was  not  within  the  admiralty  juris- 
diction, being  a  contract  made  on  land  and  to  be  performed  on 
land,  Justice  Grier  remarked:  "The  court  decided  in  that  case 
that  a  contract  to  build  a  ship  is  not  a  maritime  contract;"  but 
he  intimated  that  the  opinion  in  that  case  must  be  construed  in 
connection  with  the  precise  question  before  the  court;  in  other 
words,  that  the  effect  of  that  decision  was  not  to  be  extended  by 
implication  to  other  cases. 

In  the  case  of  The  Moses  Taylor,^®  it  was  decided  that  a  con- 
tract to  carry  passengers  by  sea  as  well  as  a  contract  to  carry 
goods,  was  a  maritime  contract  and  cognizable  in  admiralty,  al- 
though a  small  part  of  the  transportation  was  by  land,  the  prin- 
cipal portion  being  by  water.  In  a  late  case  of  affreightment, 
that  of  The  Belfast,^^  it  was  contended  that  admiralty  jurisdic- 
tion did  not  attach,  because  the  goods  were  to  be  transported  only 
from  one  port  to  another  in  the  same  State,  and  were  not  the 
subject  of  interstate  commerce.  But  as  the  transportation  was 
on  a  navigable  river,  the  court  decided  in  favor  of  the  jurisdic- 
tion, because  it  was  a  maritime  transaction.  Justice  Clifford, 
delivering  the  opinion  of  the  court,  says:  *  *  *  "Contracts, 
claims,  or  service,  purely  maritime,  and  touching  rights  and  duties 
appertaining  to  commerce  and  navigation,  are  cognizable  in  the 
admiralty  courts.  Torts  or  injuries  committed  on  navigable  waters, 
of  a  civil  nature,  are  also  cognizable  in  the  admiralty  courts.  Ju- 
risdiction in  the  former  case  depends  upon  the  nature  of  the  con- 
tract, but  in  the  latter  it  depends  entirely  upon  the  locality." 

It  thus  appears  that  in  each  case  the  decision  of  the  court  and 

9  20  lb.  401. 

10  4  Wallace,  411. 
"7    Wallace,   624. 


158  Cases  on  Federal  Procedure 

the  reasoning  on  which  it  was  founded  have  been  based  upon  the 
fundamental  inquiry  whether  the  contract  was  or  was  not  a  mari- 
time contract.  If  it  was,  the  jurisdiction  was  asserted;  if  it  was 
not,  the  jurisdiction  was  denied.  And  whether  maritime  or  not 
maritime  depended,  not  on  the  place  where  the  contract  was  made, 
but  on  the  subject-matter  of  the  contract.  If  that  was  maritime 
the  contract  was  maritime.  This  may  be  regarded  as  the  estab- 
lished doctrine  of  the  court.^^ 


CAMPBELL  V.  H.  HACKFELD  &  CO. 

Circuit  Court  of  Appeals,  Ninth  Circuit.    1903. 
125  Fed.  696,  62  C.  C.  A.  274. 

Ross,  Circuit  Judge. — This  cause  comes  here  on  appeal  from 
a  decree  of  the  District  Court  for  the  District  of  Hawaii  sustain- 
ing an  exception  of  the  appellee  to  the  jurisdiction  of  the  court 
over  the  parties  or  the  cause  of  action  stated  in  the  libel,  and 
dismissing  the  libel,  without  prejudice,  for  want  of  jurisdiction. 

The  libelant  was  a  stevedore,  and  the  libelee  a  corporation  en- 
gaged in  the  business  of  loading  and  unloading  vessels  at  Honolulu. 
The  libel  shows  that  in  pursuance  of  its  business  the  libelee  on 
the  26th  day  of  July,  1902,  undertook  to  unload  a  cargo  of  coal 
from  the  Norwegian  bark  Aeolus,  then  anchored  in  navigable 
waters  of  the  port  of  Honolulu,  and  that  the  libelant  was  one  of 
the  libelee's  employes  engaged  in  that  work;  that  while  so  en- 
gaged in  the  hold  of  the  vessel  the  libelant  was,  by  reason  of  the 
carelessness  of  the  libelee  and  of  other  of  its  employes,  severely 
injured,  for  which  injury  he  asked  damages.  Not  only  does  the 
libel  fail  to  allege  anything  against  the  ship,  its  owner,  officers, 
or  crew,  but  it  affirmatively  alleges  "that  the  persons  who  were 
engaged  in  the  unloading  of  said  bark  Aeolus,  were  all  employes 
of  said  defendant,  and  not  members  of  the  crew,  or  employes  of 
said  bark  Aeolus,  and  not  fellow  servants  of  any  capacity  with 
any  of  the  employes  of  said  bark  Aeolus." 

Instances  are   numerous   in   which   stevedores  have  maintained 

12  Only   a   |pr)r1irpri    of   tho  ojpinion    is   reprinted. 

No  nttf'm[pt  is  hero  mudn  to  ^'ive  nioro  tliaii  a  glimpse  of  the  problems  of 
admiralty   juriHdiction. — Ed. 


District  Courts  159 

libels  for  injuries  sustained  by  reason  of  defective  machinery  or 
appliances  of  the  ship,  or  by  reason  of  the  negligence  of  its  owner 
or  of  some  of  its  officers  or  crew.  Many  of  such  cases  are  referred 
to  in  The  Anaces,  93  Fed.  240,  34  C.  C.  A.  558,  and  in  the  briefs 
of  counsel  in  the  present  case.  But  no  case  has  been  cited,  and 
it  is  asserted  by  counsel  that  no  case  can  be  found,  where  a  steve- 
dore was  allowed  to  maintain  in  a  court  of  admiralty  an  action 
for  damages,  against  the  stevedore  who  employed  him,  for  injuries 
sustained  by  reason  of  the  negligence  of  the  head  stevedore,  or 
of  one  or  more  of  his  other  employes.  The  mere  fact  that  no 
such  ease  can  be  found  in  the  book  tends  strongly  to  show  that 
they  are  outside  the  acknowledged  limit  of  admiralty  cognizance 
over  marine  torts,  for  it  would  be  little  short  of  absurd  to  suppose 
that  there  have  not  been  hundreds  and  hundreds  of  instances 
where  stevedores  have  been  injured  in  their  work  through  the  negli- 
gence of  the  contracting  stevedore  or  of  some  of  his  employes. 
The  Plymouth,  3  Wall.  30,  37,  18  L.  Ed.  125 ;  The  Queen  v.  Judge 
of  the  City  of  London  Court,  Q.  B.  Div.,  vol.  28,  1892,  pp.  273-298. 

The  fundamental  principle  underlying  all  cases  of  tort,  as  well 
as  contract,  is  that,  to  bring  a  case  within  the  jurisdiction  of  a 
court  of  admiralty,  maritime  relations  of  some  sort  must  exist, 
for  the  all-sufficient  reason  that  the  admiralty  does  not  concern 
itself  with  nonmaritime  affairs.  In  concluding  his  great  opinion 
in  the  case  of  De  Lovio  v.  Boit  et  al.,  2  Gall.  398,  474,  Fed.  Cas. 
No.  3,776,  Judge  Story  said: 

"On  the  whole,  I  am,  without  the  slightest  hesitation,  ready  to 
pronounce  that  the  delegation  of  cognizance  of  'all  civil  cases  of 
admiralty  and  maritime  jurisdiction'  to  the  courts  of  the  United 
States  comprehends  all  maritime  contracts,  torts  and  injuries. 
The  latter  branch  is  necessarily  bounded  by  locality.  The  former 
extends  over  all  contracts,  wheresoever  they  may  be  made  or  exe- 
cuted, or  whatsoever  may  be  the  form  of  the  stipulations,  which 
relate  to  the  navigation,  business,  or  commerce  of  the  sea." 

Torts,  as  well  as  contracts,  not  maritime,  are  outside  of  ad- 
miralty cognizance. 

It  is  quite  true  that  in  many  of  the  decisions  of  the  Supreme 
Court  as  well  as  of  the  Circuit  Courts  of  Appeals  and  of  the 
Circuit  and  Districts  courts,  the  broad  statement  is  made  that 
in  cases  of  tort  the  sole  test  of  jurisdiction  is  locality;  and  that 
fact  is  made  the  basis  of  a  criticism  of  the  decision  of  the  court 
below  in  the  present  case,  found  in  the  Harvard  Law  Review 
for  January,  1903   (16  Harv.  Law  Rev.  210,  211),  in  which  it  is 


160  Cases  on  Federal  Procedure 

said  that  that  decision — "Infringes  a  rule  which  originated  in 
the  very  nature  of  admiralty  jurisdiction,  and  which  has  been 
satisfactory  in  its  practical  operation.  This  test  has  been  all  but 
universally  regarded  as  the  sole  one.  See  The  Plymouth,  supra. 
The  single  authority  to  the  contrary  is  the  somewhat  obscurely 
stated  dictum  of  a  text-writer.  Benedict,  supra,  308,  The  prin- 
cipal case  seems,  then,  at  variance  with  the  spirit  of  the  previous 
cases,  even  though  reconcilable  with  the  points  actually  decided. 
Not  only  would  the  adoption  of  its  doctrine  unsettle  a  rule  which 
has  long  been  assumed  to  be  law,  but  it  would  make  the  question 
of  jurisdiction  over  torts  subject  to  the  difficulty  which  so  often 
perplexes  cases  of  contract,  namely,  the  necessity  of  deciding  in 
each  case  what  is  a  maritime  relation.  The  decision  in  the  prin- 
cipal case  seems,  therefore,  unfortunate,  as  increasing  complica- 
tion and  uncertainty  in  the  law,  without,  apparently,  securing 
any  practical  gain  to  compensate  for  these  disadvantages." 

It  is  expressly  admitted  in  this  article  that  "in  every  instance 
which  has  been  found,  however,  a  maritime  relation  such  as  is 
required  by  the  court"  below,  has  in  fact  existed. 

It  is  a  cardinal,  rule  that  the  language  of  every  court  must  be 
construed  with  reference  to  the  ease  made  for  decision,  and  should 
not  be  extended  so  as  to  embrace  cases  that  could  hardly  have  been 
within  its  contemplation  when  using  the  language.  Take,  for  in- 
stance, the  expression  of  the  Supreme  Court  in  the  case  of  The 
Plymouth,  supra,  in  respect  to  the  point  in  question,  where  it  is 
said,  "Every  species  of  tort,  however  occurring,  and  whether  on 
board  a  vessel  or  not,  if  upon  the  high  seas  or  navigable  waters, 
is  of  admiralty  cognizance."  That  language  is  quite  as  broad  as, 
if  not  broader  than,  that  used  by  any  other  court  in  any  of  the 
eases  upon  the  subject,  and,  taken  literally,  would  include  within 
the  jurisdiction  of  the  admiralty  court  a  very  celebrated  case 
that  arose  on  the  bay  of  San  Francisco  in  the  year  1870,  when 
A.  P.  Crittenden,  a  distinguished  lawyer  of  California,  was  shot 
by  Laura  D.  Fair  on  board  the  ferry  steamer  El  Capitan,  while 
making  one  of  her  trips  from  the  Oakland  Mole  to  her  slip  at  San 
Francisco.  P>nt  we  think  it  would  surjjrise  the  Supreme  Court 
to  be  told  that  by  saying,  as  it  did  in  the  Plymouth  Case,  that 
"every  species  of  tort,  however  occurring,  and  whether  on  board 
a  vessel  or  not,  if  upon  the  high  sens  or  navigable  waters,  is  of 
admiralty  cogni/ajice"  it  in  effect  dcM-ided  tiiat  such  a  tort  as 
Mrs.  Fair  cominiltcd  on  Oittendcn  fell  within  admiralty  cogni- 
/ancr'.      If   llic   lini^'iiiigc  of  the   conrls   1o  llie  effect  tliat  locality 


District  Courts  161 

is  the  sole  test  of  admiralty  jurisdiction  in  cases  of  tort  is  to  be 
given  the  broad  interpretation  contended  for  by  the  appellant 
and  by  the  Law  Review  referred  to,  then  every  case  of  battery 
I'ommitted  by  one  passenger  on  another  on  board  any  ship  anchored 
in  navigable  waters  at  any  port  or  wharf  is  within  the  jurisdic- 
tion of  the  court  having  admiralty  jurisdiction  over  the  place. 
Such  an  interpretation  is,  in  our  opinion,  wholly  inadmissible, 
and  such  consequences  very  clearly  show  the  danger  of  losing 
sight,  in  construing  the  language  of  a  court,  of  the  case  about 
which  it  is  speaking.  In  The  Plymouth,  for  example,  the  case 
the  court  had  for  decision  was  one  for  damage  done  wholly  on 
land,  but  in  which  the  cause  of  damage  originated  on  water  within 
the  admiralty  jurisdiction  of  the  trial  court.  There  flames  from 
a  steam  propeller  anchored  in  the  Chicago  river  set  fire  to  some 
packing  houses  on  land,  and  for  the  damage  thus  done  it  was 
sought  to  maintain  a  suit  in  the  admiralty  court.  One  of  the 
arguments  in  favor  of  the  jurisdiction  was  that  the  vessel  which 
communicated  the  fire  to  the  buildings  was  a  maritime  instrument 
or  agent,  and  hence  characterized  the  nature  of  the  tort,  and  made 
of  it  a  maritime  tort.  The  court  held  that  to  be  a  misapprehen- 
sion, and  it  was  in  answer  to  that  contention  that  it  said,  "The 
jurisdiction  of  the  admiralty  over  maritime  torts  does  not  depend 
upon  the  fact  that  the  injury  was  inflicted  by  the  vessel,  but  upon 
the  locality — ^the  high  seas  or  navigable  waters — where  it  oc- 
curred, ' '  and  immediately  added  the  clause  heretofore  quoted : 
"Every  species  of  tort,  however  occurring,  and  whether  on  board 
a  vessel  or  not,  if  upon  the  high  seas  or  navigable  waters,  is  of 
admiralty  cognizance. ' ' 

In  this  connection,  we  quote  a  few  paragraphs  from  the  opinion 
of  Lord  Esher,  Master  of  the  Rolls,  delivered  in  a  late  case  in 
England  (hereinafter  further  referred  to),  where  it  was  sought 
to  maintain  in  a  court  of  admiralty  an  action  in  personam  against 
a  pilot  in  respect  of  a  collision  between  two  ships  on  the  high  seas, 
caused  by  his  negligence: 

"It  is  said  that  there  is  a  decision  of  Dr.  Lushington  in  favor 
of  the  jurisdiction,  and  (merely  to  show  the  danger  of  taking 
words  from  a  judgment  without  looking  further)  I  will  at  once 
grapple  with  it.  In  The  Sarah,  Lush.  549,  Dr.  Lushington  said 
at  page  550 :  ' '  The  court  has  original  juris?diction,  because  the 
matter  complained  of  is  a  tort  committed  on  the  high  seas." 
There,  it  is  said,  in  a  declaration  by  Dr.  Lushington,  that  he  had 
jurisdiction  over  all  torts  committed  on  the  high  seas.  That  case 
^^^,oatnn  C.  F.  P.— 11 


162  Cases  on  Federal  Procedure 

was  decided  in  1862 ;  but  if  we  turn  to  the  earlier  case  of  The 
Ida,  Lush,  6,  in  which  the  subject-matter  was  the  willful  cutting 
of  a  bark  adrift,  whereby  she  capsized  a  barge  which  contained 
cargo,  Dr.  Lushington  says  at  page  9:  "The  court,  however,  is 
still  further  indisposed  to  exercise  jurisdiction  on  account  of  the 
peculiar  nature  of  the  act  for  which  the  plaintiffs  are  now  trying 
to  render  the  defendant's  ship  liable.  The  court,  it  must  be  re- 
membered, has  never  exercised  a  general  jurisdiction  over  damage, 
but  over  causes  of  collision  onl3\"  Therefore,  by  what  he  said  in 
The  Sarah,  Lush.  549,  he  really  did  not  mean  every  tort  committed 
on  the  high  seas,  but  only  wrongful  collisions;  and  he  limited 
himself  in  The  Ida,  Lush.  6,  by  saying,  in  effect,  that  the  juris- 
diction of  the  admiralty  had  never  extended  to  all  torts  on  the 
high  seas."  The  Queen  v.  The  Judge  of  the  City  of  London  Court, 
Queen's  Bench  Division,  vol.  28,  1892,  pp.  273,  292. 

In  the  case  of  Insurance  Co.  v.  Dunham,  11  "Wall.  1,  20  L.  Ed. 
90,  the  Supreme  Court  pointed  out  that  it  had  frequently  been 
decided  by  that  court — "That  the  admiralty  and  maritime  juris- 
diction of  the  United  States  is  not  limited  either  by  the  restrain- 
ing statutes  or  the  judicial  prohibitions  of  England,  but  is  to  be 
interpreted  by  a  more  enlarged  view  of  its  essential  nature  and 
objects,  and  with  reference  to  analogous  jurisdictions  in  other 
countries  constituting  the  maritime  commercial  world,  as  well  as 
to  that  of  England." 

And  as  to  contracts  (the  case  then  before  the  court)  said: 

"The  English  rule,  which  concedes  jurisdiction,  with  a  few  ex- 
ceptions, only  to  contracts  made  upon  the  sea,  and  to  be  executed 
thereon  (making  locality  the  test),  is  entirely  inadmissible,  and 
that  the  true  criterion  is  the  nature  and  subject-matter  of  the  con- 
tract, as  whether  it  was  a  maritime  contract,  having  reference  to 
maritime  service  or  maritime  transactions." 

The  locality  test  was  there  discarchnl  as  to  contracts,  because, 
as  the  jurisdiction  conferred  on  the  United  States  courts  "com- 
l)rehends  all  maritime  contracts,  torts,  and  injuries,"  the  true 
criterion  in  llic  case  then  before  the  court  was,  not  the  place  where 
the  contract  was  made,  but  the  nature  and  subject-matter  of  the 
contract — tliat  is  to  say,  wlictlicr  it  liad  reference  to  maritime 
service  or  marillmc  ti-ansactioiis. 

In  tlie  case  of  toi-ls,  locality  remains  the  test,  for  the  manifest 
reason  that,  to  give  an  admiralty  court  jurisdiction,  they  must 
occur  in  a  y)Iace  where  llir  law  matilime  prevails.  But  this  is  by 
no  means  saviri''  that   a  t(ni   or  injiirx-   in  no  wa\'  connected  with 


District  Courts  163 

any  vessel,  or  its  owner,  officers,  or  ercw,  although  occurring  in 
such  a  place  or  territory,  is  for  that  reason  within  the  jurisdic- 
tion of  the  admiralty.  On  the  contrary,  it  is,  as  has  been  seen, 
only  of  maritime  contracts,  maritime  torts,  and  maritime  injuries 
of  which  the  United  States  courts  are  given  admiralty  jurisdic- 
tion. These  views  are  not  in  conflict  with  any  decision  brought 
to  our  notice,  or  that  we  have  been  able  to  find.  They  are  not 
only,  in  our  opinion,  based  on  sound  reason,  but  also  find  sup- 
port in  Benedict's  Admiralty  (3d  Ed.)  §308,  where  that  learned 
writer  says: 

"Cases  of  torts  on  the  high  seas,  superaltum  mare,  have  always 
been  held,  even  in  England,  to  be  within  the  jurisdiction  of  ad- 
miralty. And  the  jurisdiction  in  such  cases  has  usually  been  held 
to  depend  upon  locality,  embracing  only  civil  torts  and  injuries 
done  on  the  sea,  or  on  waters  of  the  sea  where  the  tide  ebbs  and 
flows.  It  depends  upon  the  place  where  the  cause  of  action  arises, 
and  that  place  must  be  the  waters  which  are  subject  to  the  ad- 
miralty jurisdiction.  It  may,  however,  be  doubted  whether  the 
civil  jurisdiction,  in  such  cases  of  torts,  does  not  depend  upon 
the  relation  of  the  parties  to  a  ship  or  vessel,  embracing  only 
those  tortious  violations  of  maritime  right  and  duty  which  occur 
in  vessels,  to  which  the  admiralty  jurisdiction,  in  cases  of  con- 
tracts, applies.  If  one  of  several  landsmen  bathing  in  the  sea 
should  assault  or  imprison  or  rob  another,  it  has  not  been  held 
here  that  the  admiralty  would  have  jurisdiction  of  the  action  for 
the  tort." 

In  the  case  of  The  Queen  v.  The  Judge  of  the  City  of  London 
Court,  supra,  which  is  a  very  much  stronger  case  in  favor  of  the 
jurisdiction  claimed  than  is  the  case  at  bar,  Lord  Esher,  M.  R., 
in  considering  on  what,  under  the  English  law,  does  the  jurisdic- 
tion of  the  admiralty  court  depend,  said: 

"It  does  not  depend  merely  on  the  fact  that  something  has 
taken  place  on  the  high  seas.  That  it  happened  there  is,  no  doubt, 
irrespective  of  statute,  a  necessary  condition  for  the  jurisdic- 
tion of  the  admiralty  court ;  but  there  is  the  further  question, 
what  is  the  subject-matter  of  that  which  has  happened  on  the  high 
seas?  It  is  not  everything  which  takes  place  on  the  high  seas 
which  is  within  the  jurisdiction  of  the  admiralty  court.  A  third 
consideration  is,  with  regard  to  whom  is  the  jurisdiction  asserted? 
You  have  to  consider  three  things — the  locality,  the  subject-matter 
of  complaint,  and  the  person  with  regard  to  whom  the  complaint 


164  Cases  on  Federal  Procedure 

is  made.  You  must  consider  all  these  things  in  determining 
whether  the  admiralty  court  has  jurisdiction." 

The  opinion  of  his  lordship  in  the  case  cited  is  a  very  lucid 
and  instructive  one,  and  will  well  repay  perusal. 

We  are  of  the  opinion  that  the  ruling  of  the  court  below  was 
right,  that  it  is  not  in  conflict  with  any  previous  decision  of 
which  we  are  aware,  and  that  it  in  no  way  tends  to  unsettle  any 
rule  of  adrairaltj",  or  to  introduce  into  that  branch  of  the  law  any 
complication  or  uncertainty. 

The  judgment  is  affirmed. 


THE  JOSEFA  SEGUNDA. 

Supreme  Court  of  the  United  States.     1825. 

23  U.  S.  (10  Wheaton)  312,  6  L.  Ed.  329. 

One  of  the  questions  involved  in  this  case  is  as  to  who  had  made 
a  seizure  of  slaves. 

It  appeared,  by  the  evidence,  that  Koberts,  being  employed  as 
an  inspector  in  a  revenue  boat  at  the  Balize,  near  the  mouth  of 
the  ]\Iississippi,  on  the  18th  of  April,  1818,  boarded  the  vessel, 
and  declared  that  he  had  seized  her.  He,  soon  afterwards,  went 
on  shore,  and  put  a  person  on  board  to  take  charge  of  the  vessel, 
which  remained  at  anchor  opposite  the  block-house,  until  the  21st 
of  A})ril,  when  Lieutenant  Meade,  with  six  soldiers  in  a  boat, 
went  from  Fort  St.  Philij),  in  company  with  a  custom-house  boat, 
and  Mr.  Gardner,  an  officer  of  the  customs,  on  board,  took  posses- 
sion of  the  vessel,  and  brouglit  her  up  under  the  guns  of  the  fort. 
It  appeared,  that  Roberts,  afterwards,  came  on  board  the  vessel, 
but  did  not  remain  on  board  until  her  arrival  at  the  city  of  New 
Orleans,  he  having  left  her  in  order  to  board  another  vessel  in  the 
river.  On  the  21st  of  April,  Mr,  Chew,  the  collector  at  New 
Orleans,  acting  on  indcjx'ndent  infoniiation  which  he  had  received, 
sent  an  arnicd  revenue  boat,  Avith  an  Inspector  of  the  Customs, 
down  the  rivci-,  willi  instructions  to  sei/.e  the  vessel.  On  arriving 
at  Fort  St.  Philip,  tlicy  found  the  vessel  at  anchor  opposite  the 
fort,  with  a  srrgcant's  guard  on  board,  which  had  been  jilaced 
there  li\-  M.ijr.i-  I  luinpliicy,  llic  commanding  officer  at  the  fort. 
TIic    insjicctor    icccivcd    from    that    officer   the   ship's   papers,   and 


District  Courts  165 

took  possession  of  the  vessel  and  negroes,  the  guard  having  been 
withdrawn,  and  brought  them  up  to  the  city  of  New  Orleans. 
Proceedings  were  commenced  against  the  property  at  the  instance 
of  Mr.  Chew,  and  the  other  officers  of  the  customs,  and  though 
his  name  was  not  inserted  in  the  libel,  the  prosecution  was  con- 
ducted by  him  until  its  final  determination,  and  the  other  parties 
claiming  as  captors,  or  seizors,  did  not  intervene  until  after  the 
decree  of  this  court  on  the  appeal  in  the  original  cause. 

The  court  below  pronounced  a  decree,  dismissing  the  claims  of 
Messrs.  Roberts,  Humphrey,  Meade,  and  Gardner,  and  allowing 
that  of  the  collector  and  other  officers  of  the  customs,  and  the 
cause  was  brought  by  appeal  to  this  court.^ 

Mr.  Jutice  Story  delivered  the  opinion  of  the  court.     *     *     » 

In  respect  to  the  claim  of  Mr.  Roberts,  we  do  not  think  that 
the  evidence  establishes  that  he  ever  made  any  valid  seizure  of 
the  vessel.  It  is  not  sufficient  that  he  intended  to  make  one,  or 
that,  on  some  occasions,  he  expressed  to  third  persons  that  he 
had  so  done.  There  must  be  an  open,  visible  possession  claimed, 
and  authority  exercised  under  a  seizure.  The  parties  must  under- 
stand that  they  are  dispossessed,  and  that  they  are  no  longer  at 
liberty  to  exercise  any  dominion  on  board  of  the  ship.  It  is  true, 
that  a  superior  physical  force  is  not  necessary  to  be  employed,  if 
there  is  a  voluntary  acquiescence  in  the  seizure  and  dispossession. 
If  the  party,  upon  notice,  agrees  to  submit,  and  actually  submits, 
to  the  command  and  control  of  the  seizing  officer,  that  is  suffi- 
cient ;  for,  in  such  cases,  as  in  cases  of  captures  jure  belli,  a  volun- 
tary surrender  of  authority,  and  an  agreement  to  obey  the  captor, 
supplies  the  place  of  actual  force.  But,  here,  Mr.  Roberts  gave 
no  notice  of  the  seizure  to  the  persons  on  board;  he  exercised 
no  authority,  and  claimed  no  possession.  He  had  no  force  ade- 
quate to  compel  submission ;  and  his  appearance  in  the  vessel  gave 
no  other  character  to  him  than  that  of  an  inspector,  rightfully 
on  board,  in  performance  of  his  ordinary  duties.  To  construe  such 
an  equivocal  act  as  a  seizure,  would  be  unsettling  principles. 

Messrs.  Humphrey,  Meade,  and  Gardner,  certainly  did  make  a 
seizure,  by  their  open  possession  of  the  vessel,  and  bringing  her 
under  the  guns  of  Fort  St.  Philip.  But  there  is  this  objection 
to  the  seizure,  both  of  Mr.  Roberts  (assuming  that  he  made  one), 

1  The  facts  are  restated  and  only  a  portion  of  the  opinion  is  reprinted. — 
Ed. 


166  Cases  on  Federal  Procedure 

and  of  the  other  persons,  that  it  was  never  followed  up  by  any 
subsequent  prosecution  or  proceedings.  The  seizure  of  Messrs, 
Humphrey,  Meade,  and  Gardner,  seems  to  have  been  voluntarily 
abandoned  by  them;  and  even  that  of  Mr.  Roberts,  if  he  made 
one,  does  not  seem  to  have  been  persisted  in.  Now,  a  seizure,  or 
capture,  call  it  which  we  may,  if  once  abandoned,  without  the  in- 
fluence of  superior  force,  loses  all  its  validity,  and  becomes  a  com- 
plete nullity.  Like  the  common  case  of  a  capture  at  sea,  and  a 
voluntary  abandonment,  it  leaves  the  property  open  to  the  next 
occupant.  But  what  is  decisive  in  our  view  is,  that  neither  of 
these  gentlemen  ever  attempted  any  prosecution,  or  intervened 
in  the  original  proceedings  in  the  District  Court,  claiming  to  be 
seizors,  which  was  indispensable  to  consummate  their  legal  right; 
and  their  claim  was,  for  the  first  time,  made  after  a  final  decree 
of  condemnation  in  the  Supreme  Court.  This  was  certainly  a 
direct  waiver  of  any  right  acquired  by  their  original  seizures. 
It  is  not  permitted  to  parties  to  lie  by,  and  allow  other  persons 
to  incur  all  the  hazards  and  responsibility  of  being  held  to  dam- 
ages in  case  the  seizure  turns  out  to  be  wrongful,  and  then  to 
come  in,  after  the  peril  is  over,  and  claim  the  whole  reward.  Such 
a  proceeding  would  be  utterly  unjust,  and  inadmissible.  If  the 
parties  meant  to  have  insisted  on  any  right,  as  seizors,  their  duty 
was  to  have  intervened  in  the  District  Court  before  the  hearing 
on  the  merits,  according  to  the  course  pointed  out  by  Lord  Hale 
in  the  passage  cited  at  the  bar,  where  there  are  several  persons 
claiming  to  be  seizors  of  forfeited  property.^  In  the  present  case, 
Mr.  Chew  actually  advanced  a  considerable  sum  of  money  for 
the  maintenance  of  these  negroes  during  the  pendency  of  the  suit ; 
and  if  it  had  been  unsuccessful  he  might  have  exclusively  borne 
the  loss.  Upon  the  plain  ground,  then,  that  Mr.  Roberts,  and 
Messrs.  Humphrey,  Meade,  and  Gardner,  have  not  followed  up 
their  seizure  by  any  prosecution,  such  as  the  Act  of  1807  requires, 
we  are  of  opinion,  that  there  is  no  foundation,  in  point  of  law, 
for  their  claims. 

That  Mr.  Chew,  on  behalf  of  himself,  and  the  surveyor  and 
naval   officer  of  the  port  of  New  Orleans,  did  make  the  seizure 

2  Harp.  Law  Tracta,  (4to.)  p.  27.  "At  roininon  law,  any  person  might 
Hfizc  iiniustoriu'f]  (jnods  to  the  use  of  the  kinj^  and  himself,  and  tlicrenpon 
inform  for  a  seizure.  But  yet,  if  A.  seize  poods  uncustomed,  and  then  B. 
^eizo  t)iein  for  the  same  cause,  he  tliat  first  seizeth  ouplit  to  be  jircferred 
ns  the  inforniiT.  And,  therefore,  if  B.,  that  seized  after,  first  inform,  and  A. 
alno  inform,  A.  may  he  adtiiiitcd  to  inter|)h'ad  with  B.,  upon  the  priority 
of   tiic  seizure,  before   tlie   nicrrliant  i-liali    be   j;ut    to  answer   either." 


District  Courts  167 

nil  which  the  prosecution  in  this  case  was  founded,  is  completely 
proved  by  the  evidence;  it  is  also  admitted  by  the  United  States, 
in  their  answer  to  the  libel  of  Messrs.  Carricaberra,  etc.,  the  Span- 
ish claimants,  and  is  averred  by  Mr.  Chew,  and  his  coadjutors,  in 
their  separate  allegation  and  answer  to  the  same  libel.  While 
the  vessel  lay  at  Fort  St.  Philip,  armed  boats,  under  revenue  offi- 
cers, were  sent  down  by  him,  with  orders  to  seize  her,  and  bring 
her  up  to  New  Orleans  for  prosecution,  which  was  done  accord- 
ingly.» 


THE  CITY  OF  MEXICO. 

District  Court,  8.  D.  Florida.     1886. 
28  Fed.  148. 

Locke,  J. — The  only  ground  upon  which  a  libel  for  prize  can 
be  sustained  is  that  of  a  state  of  war.  Prize  only  relates  to  or 
is  connected  with  such  a  state  or  condition.  A  vessel  captured 
for  engaging  in  piratical  aggression  becomes  a  prize  on  account 
of  the  state  of  universal  war  presumed  to  have  been  declared  by 
a  pirate  against  commerce  and  human  kind  at  large,  which  requires 
no  reciprocal  declaration  from  any  nation.  Whether  piracy  is 
considered  as  a  name  applied  only  to  indiscriminate  plundering 
and  robbery,  either  upon  the  high  seas  or  upon  the  coasts  where 
the  high  seas  are  used  as  the  basis  of  operation,  where  the  animus 
furnadi  is  the  distinguishing  feature,  as  is  expressed  and  held  by 
President  Woolsey,  precluding  the  idea  of  a  revolutionary  or 
political  sentiment,  or  whether  there  may  be  acts  of  piracy  com- 
mitted in  following  out  the  direct  course  of  a  revolutionary  strug- 
gle, as  is  contended  by  Judge  Brown  in  the  recent  case  of  The 
Ambrose  Light,  25  Fed.  Rep.  408,  there  must  be  some  overt  act 
either  in  committing  or  attempting  some  offense  against  the  law 

3  In  The  Sarah,  21  U.  S.  (8  Wheaton)  391,  5  L.  Ed.  644  (1823)  Mr. 
Chief  Justice  Marshall  said,  "By  the  act  constituting  the  judicial  system  of 
the  United  States,  the  District  Courts  are  courts  both  of  common  law  and 
admiralty  jurisdiction.  In  the  trial  of  all  cases  of  seizure,  on  land,  the 
Court  sits  as  a  Court  of  common  law.  In  cases  of  seizure  made  on  watera 
navigable  by  vessels  of  ten  tons  burthen  and  upwards,  the  Court  sits  as  a 
Court  of  Admiralty.  In  all  cases  at  common  law,  the  trial  must  be  by 
jury.  In  cases  of  admiralty  and  maritime  jurisdiction,  it  has  been  settled,  in 
the  cases  of  the  Vengeance  (reported  in  3  Dallas'  Rep.  297),  the  Sally  (in 
2  Cranch's  Rep.  406)  and  the  Betsy  and  Charlotte  (in  4  Cranch's  Rep.  443) 
that  the  trial  is  to  be  by  the  Court." — Ed. 


168  Cases  on  Federal  Procedure 

of  nations,  to  give  a  piratical  character  to  a  vessel.  An  intent  alone 
can  never  determine  such  a  state  of  warfare  as  would  justify  the 
seizure  of  a  prize.  There  is  in  this  case  nothing  that  can  be  char- 
acterized as  an  overt  act  of  piracj^  or  warfare,  and  the  libel  for 
forfeiture  as  prize  must  be  dismissed.^ 


UNITED  STATES  v.  HILL. 

Supreme  Court  of  the  United  States.     1887. 
123  V.  S.  681,  8  S.  Ct.  308,  31  L.  Ed.  275. 
Mr.  Justice  Waite  delivered  the  opinion  of  the  court. 

This  is  a  suit  brought  on  the  official  bond  of  Clement  Hugh 
Hill,  as  clerk  of  the  District  Court  of  the  United  States  for  the 
District  of  ^Massachusetts,  for  "not  properly  accounting  for  all 
moneys  coming  into  his  hands,  as  required  by  law,  according  to 
the  condition  of  said  bond."  The  bond  was  in  the  penal  sum  of 
$20,000,  and  in  the  original  writ  the  damages  were  laid  at  $2,000. 
The  bill  of  exceptions  shows  that  the  controversy  in  the  suit  was 
as  to  the  liability  of  the  clerk  to  account  to  the  United  States  for 
moneys  received  by  him  in  naturalization  business.  The  questions 
involved  are  in  many  respects  the  same  as  in  United  States  v. 
Hill,  120  U.  S.  169,  though  in  some  important  particulars  the  two 
cases  differ. 

Under  the  instructions  of  the  court  the  jury  found  a  verdict 
for  the  defendants  on  the  26th  of  July,  1887.  On  the  3d  of  August, 
and  before  judgment,  the  writ  was  amended,  with  leave  of  the 
court,  by  increasing  the  ad  damnum  from  .1^2,000  to  $20,000.  Then, 
on  the  24th  of  August,  a  judgment  was  entered  in  due  form  on  the 
verdict,  "that  the  plaintiff  take  nothing  by  the  writ."  To  re- 
verse that  judgment  this  writ  of  error  was  brought,  which  the 
defendants  now  move  to  dismiss,  because  the  value  of  the  matter 
in  dispute  does  not  exceed  five  thousand  dollars.     *     *     # 

'I'lie  Attorney  General  insists-- 

1.  That  it  does  not  appear  legitimately  on  the  face  of  this  record 
that  the  amount  due  is  less  than  the  penalty  of  the  bond ;  and, 

1  Only  a  jiortioti   of   tlir   oi/mioii    is   r<'|iriiit((l.— l-^d. 


District  Courts  169 

2.  That  this  is  a  suit  brought  for  the  enforcement  of  a  "revenue 
liiw"  of  the  United  States,  and,  therefore,  this  court  has  juris- 
diction for  the  review  of  the  judgment  under  §  699  of  the  Re- 
vised Statutes  ''without  regard  to  the  sum  or  value  in  dispute."  ^ 

The  part  of  §  699  of  the  Revised  Statutes  which  is  relied  on 
as  giving  us  jurisdiction,  notwithstanding  the  small  amount  in- 
volved, is  the  second  subdivision,  which  provides  for  a  writ  of 
error  without  regard  to  the  sum  or  value  in  dispute,  upon  "any 
final  judgment  of  a  Circuit  Court  *  *  *  in  any  civil  action 
brought  by  the  United  States  for  the  enforcement  of  any  revenue 
law  thereof."  The  original  statute,  of  which  this  is  a  reenactment, 
was  passed  May  31,  1844,  c.  31,  5  Stat.  658,  and  is  as  follows : 

' '  That  final  judgments  in  any  Circuit  Court  of  the  United  States, 
in  any  civil  action  brought  b}^  the  United  States  for  the  enforce- 
ment of  the  revenue  laws  of  the  United  States,  or  for  the  collec- 
tion of  duties  due,  or  alleged  to  be  due,  on  merchandise  imported 
therein,  may  be  re-examined,  and  reversed  or  affirmed,  in  the  Su- 
preme Court  of  the  United  States,  upon  writs  of  error,  as  in  other 
cases,  without  regard  to  the  sum  or  value  in  controversy  in  .such 
action,  at  the  instance  of  either  party." 

Section  823  of  the  Revised  Statutes  provides  that  "the  follow- 
ing and  no  other  compensation  shall  be  taxed  and  allowed  to 
*  *  *  clerks  of  the  Circuit  *  *  *  Courts."  "The  follow- 
ing" here  referred  to  is  found  in  §  828,  which  prescribes  the  fees 
of  a  clerk.  Thus  far  the  legislation  has  reference  only  to  the 
compensation  to  be  paid  a  clerk  for  his  services.  But  §  839  pro- 
vides that  the  clerk  shall  be  allowed  to  retain  of  the  fees  and 
emoluments  of  his  office,  for  his  personal  compensation,  a  sum  not 
exceeding  $3,500  a  year.  Section  833  makes  it  his  duty  to  report, 
semiannually,  to  the  Attorney  General,  all  the  fees  and  emolu- 
ments of  his  office,  and  all  necessary  expenditures,  with  vouchers 
for  their  payment.  Section  844  then  requires  him  to  pay  into 
the  treasury  any  surplus  of  such  fees  and  emoluments  which  his 
return  shows  to  exist  over  and  above  the  compensation  and  allow- 
ances authorized  by  law  to  be  retained  by  him. 

The  precise  question  for  decision  is,  whether  this  section,  which 
provides  for  the  paj'ment  by  the  clerk  into  the  treasury  of  the 
surplus  moneys  received  by  him  as  the  fees  and  emoluments  of 
his  office,  is  a  "revenue  law,"  within  the  meaning  of  that  clause 
of  §  699  which  is  relied  on,  and  we  have  no  hesitation  in  saying 

1  The  part  of  the  case  dealing  with  the  first  objection  of  the  Attorney 
General  is  not  reprinted. — Ed. 


170  Cases  on  Federal  Procedure 

that  it  is  not.  As  the  provision  relates  to  the  jurisdiction  of  this 
court  for  the  review  of  the  judgments  of  the  Circuit  Courts,  it  is 
proper  to  refer  to  the  statutes  giving  jurisdiction  to  those  courts 
to  see  if  there  is  anything  there  to  show  what  the  term  "revenue 
law,"  as  here  used,  means.  Looking,  then,  to  §  629  of  the  Re- 
vised Statutes,  we  find  that  by  the  fourth  subdivision  the  Circuit 
courts  have  been  granted  original  jurisdiction  "of  all  suits  at 
law  or  in  equity  arising  under  any  act  providing  for  revenue 
from  imports  or  tonnage,"  and  "of  all  causes  arising  under  any 
law  providing  internal  revenue."  And  again,  by  the  twelfth  sub- 
division, "of  all  suits  brought  by  any  person  to  recover  damages 
for  any  injury  to  his  person  or  property  on  account  of  any  act 
done  by  him  under  any  law  of  the  United  States  for  the  protec- 
tion or  collection  of  any  of  the  revenues  thereof."  This  clearly 
implies  that  the  term  "revenue  law,"  when  used  in  connection 
with  the  jurisdiction  of  the  courts  of  the  United  States,  means  a 
law  imposing  duties  on  imports  or  tonnage,  or  a  law  providing 
in  terms  for  revenue ;  that  is  to  say,  a  law  which  is  directly  trace- 
able to  the  power  granted  to  Congress  by  §  8,  Art.  I,  of  the  Con- 
stitution, "to  lay  and  collect  taxes,  duties,  imposts,  and  excises." 
This  view  is  strengthened  by  the  third  subdivision  of  §  699,  which 
gives  this  court  jurisdiction,  without  reference  to  the  value  in  dis- 
pute, of  "any  final  judgment  of  a  Circuit  Court  *  *  *  in  any 
civil  action  against  an  officer  of  the  revenue,  for  any  act  done  by 
him  in  the  performance  of  his  official  duty."  Certainly  it  will 
not  be  claimed  that  the  clerk  of  a  District  Court  of  the  United 
States  is  an  "officer  of  the  revenue,"  but  there  is  nothing  to  in- 
dicate that  the  term  revenue  has  any  different  signification  in 
this  subdivision  of  the  section  from  that  which  it  has  in  the  other. 
The  clerk  of  a  court  of  the  United  States  collects  his  taxable  "com- 
pensation," not  as  the  revenue  of  the  TJnited  States,  but  as  the 
fees  and  emoluments  of  his  office,  with  an  obligation  on  his  part 
to  account  to  the  TJnited  States  for  all  he  gets  over  a  certain  sum 
which  is  fixed  by  law.  This  o})ligation  does  not  grow  out  of  any 
"revenue  law,"  properly  so  called,  but  out  of  a  statute  govern- 
ing an  officer  of  a  court  of  the  United  States. 

It  follows  that  this  is  a  case  whore  our  jurisdiction  depends 
on  the  value  of  the  matter  in  dispute,  as  that  is  not  sufficient  in 
amount,  that  tho  motion  to  dismiss  must  be  granted.  It  is,  con- 
scquently,  so  ordered.  Dismissed.^ 

« Compare  Pottijfrew   v.   United   States,   97   TT,   R,   385,   .'J86-387,   24   L.   Ed. 
lOliO    (1878).— Kd, 


District  Courts  171 

Mr.  Justice  Swayne  in  Inman  Steamship  Co.  v.  Tinker,  94  U. 
S.  238,  24  L.  Ed.  118  (1876),  said: 

"Tonnage,"  in  our  law,  is  a  vessel's  "internal  cubical  capacity 
in  tons  of  one  hundred  cubic  feet  each,  to  be  ascertained"  in  the 
manner  prescribed  by  Congress.  Act  of  May  6,  1864,  13  Stat.,  pp. 
70,  72;  Rev.  Stat.  U.  S.  804,  §4153.  ''Tonnage  duties  are  duties 
upon  vessels  in  proportion  to  their  capacity."  Bouv.  Law  Diet., 
"Tonnage." 

The  term  was  formerly  applied  to  merchandise.  Cowel,  in  his 
Law  Dictionary,  published  in  1708,  thus  defines  it:  "Tonnage 
(tonnagium)  is  a  custom  or  impost  paid  to  the  king  for  merchan- 
dise carried  out  or  brought  in  ships,  or  such  like  vessels,  according 
to  a  certain  rate  upon  every  ton,  and  of  this  you  may  read  in  the 
statutes  of  12  Edw.  IV.,  c.  3 ;  6  Hen.  VIII.,  c.  14,"  etc.  The  vital 
principle  of  such  a  tax  or  duty  is  that  it  is  imposed,  whatever 
the  subject,  solely  according  to  the  rule  of  weight,  either  as  to  the 
capacity  to  carry,  or  the  actual  weight  of  the  thing  itself." 


ATHERTON  MACH.  CO.  v.  ATWOOD-MORRISON  CO. 

Circuit  Court  of  Appeals,  Third  Circuit.     1900. 
102  Fed.  949,  43  C.  C.  A.  72. 

The  complainant  set  forth  in  its  bill  assignments  by  which  it 
obtained  title  to  a  patent.  Then  it  stated  by  way  of  an  antici- 
pated defense,  that  the  defendant  claimed  to  have  been  assigned 
the  right  to  the  patent  involved,  and  stated  that,  if  such  an  as- 
signment was  made,  it  was  invalid  as  against  the  complainant. 
It  then  asked  for  an  injunction  and  an  accounting,  and  that  the 
pretended  assignment  be  declared  to  be  of  no  effect,  and  the  record 
thereof  canceled. 

The  defendant  demurred,  and  the  Circuit  Court  sustained  the 
demurrer  and  dismissed  the  bill.  The  ground  on  which  the  de- 
murrer was  sustained  was  that  the  suit  was  not  a  suit  at  law  or 
in  equity  arising  under  the  patent  or  copyright  laws  of  the  United 
States,  and  that  therefore  the  court  had  no  jurisdiction  of  the 
case.  The  court  held  that  the  question  whether  the  complainant 
was  entitled  to  relief  did  not  involve  the  consideration  of  any 
law  of  the  United  States,  and  that  the  title  to  the  patent  rested 
solely  in  contract,  in  the  interpretation  of  which  the  general  prin- 
ciples of  equity  and  common  law  are  applicable,  and  that  as  both 


172  Cases  on  Federal  Procedure 

complainant  and  defendant  are  corporations  of  the  State  of  New 
Jersey,  and  as  such  citizens  and  inhabitants  of  that  State,  it  had 
no  jurisdiction  of  the  case.^ 

Gray,  Circuit  Judge. — The  act  of  Congress  of  1870,  as  em- 
bodied in  section  629  of  the  Revised  Statutes,  provides  that 
the  "Circuit  courts  shall  have  original  jurisdiction  as  follows: 
*  *  *  of  all  suits  at  law  or  in  equit}^  arising  under  the  patent 
or  copyright  laws  of  the  United  States."  The  jurisdiction  thus 
conferred  is  exclusive.  All  questions,  therefore,  which  concern  the 
infringement  or  validity  of,  and  the  title  to,  patents  granted  under 
the  patent  laws  of  the  United  States,  must  be  litigated  in  the 
Circuit  courts  of  the  United  States.  "It  is  perfectlj^  well  settled," 
however,  "that  where  a  suit  is  brought  on  a  contract,  of  which  a 
patent  is  the  subject-matter,  either  to  enforce  such  contract  or  to 
annul  it,  the  case  arises  on  the  contract  or  out  of  the  contract,  and 
not  under  the  patent  laws."     *     *     * 

Where  a  bill  in  equity  states  a  contract  between  complainant  and 
defendant,  and  which  it  seeks  to  have  set  aside  in  order  to  pursue 
the  defendant  as  an  infringer,  or  where  the  bill  states  a  contract 
between  complainant  and  defendant,  which  it  seeks  to  enforce,  as 
giving  complainant  title  to  the  patent,  the  case  cannot  be  said  to 
arise  under  the  patent  laws.  In  either  case  the  court  is  called  upon 
to  administer  the  law  of  the  contract,  and  not  the  patent  law  of 
the  United  States,  or  rights  claimed  under  them.  But,  where  the 
contract  set  up  or  stated  is  not  between  the  parties  of  the  suit,  it 
is  collateral  thereto,  and  cannot,  therefore,  give  character  to  the 
case  as  being  on  the  contract,  and  not  one  arising  under  the  patent 
laws.  In  the  case  before  us  the  action  was  not  brought  to  enforce 
a  contract  or  to  set  aside  a  contract  between  defendant  and  com- 
plainant. In  other  w^ords,  it  was  not  a  suit  upon  a  contract  be- 
tween the  parties  to  the  suit,  within  the  scope  of  the  decisions 
referred  to.  The  appellee  is  mistaken  in  its  contention  that  ques- 
tions of  title  to  patents,  such  as  are  raised  in  this  case,  cannot  be 
questions  arising  under  the  patent  laws  of  the  United  States,  be- 
cause they  involve  the  derivation  of  title  from  a  contract.  The 
complainant  in  this  case  has  stated  in  its  bill  that  it  is  the  owner 
of  llic  j)alent  in  suit,  and  derives  title  throngh  an  assignment  from 
llie  |>atentee.     An  aveniieiit   of  title  in  the  complainant  must  nec- 

1  The  factH  wliidi  arc  to  lie  fdiin.l  in  tlir  (ppiiiinn  of  llic  court  arc  restated, 
and  thi«  [»art  of  tlio  opinion  scttiii),'  I'urfli  llio  factH,  as  well  as  otln-r  |)ortion9 
thereof,  are   omitted. —  Kd. 


District  Courts  173 

essarily  be  made,  and  is  the  necessary  foundation  for  all  rights 
asserted  or  litigated  by  the  complainant.  It  is  an  averment  with- 
out which  complainant  has  no  proper  standing  in  court.  It  matters 
not  whether  the  title  be  that  of  the  patentee,  derived  directly  from 
the  grant  made  by  the  Government,  or  that  of  an  assignee  of  the 
patentee  or  the  assignee  of  an  assignee.  In  either  case  it  is  the 
statement  of  a  prima  facie  qualification  to  institute  the  suit,  and 
such  title,  whether  direct  to  the  patentee,  or  derivative  from  him 
by  assignment  or  assignments,  is  the  creature  of  the  patent  law, 
and  not  of  the  common  law;  and,  whether  admitted  or  attacked  by 
the  opposing  party,  the  questions  raised  are  raised  under  the  pat- 
ent laws,  and  are  therefore,  within  the  meaning  of  the  Revised 
Statutes  of  the  United  States,  justiceable  in  the  Circuit  courts,'^ 


ROSS  V.  H.  S.  GEER. 

Circuit  Court,  N.  D.  New  York.     1911. 

188  Fed.  731. 

Ray,  District  Judge. — The  parties  are  both  residents  and  citizens 
of  the  State  of  New  York,    The  complainant  has  a  valid  registered 

2  In  the  following  cases  it  was  held  that  the  question  involved  was  not  one 
arising  under  the  patent  laws;  Kurtz  v.  Strauss,  100  Fed.  800  (1900)  speeitic 
performance  of  contract  and  cancellation  of  alleged  forged  assignment:  H. 
C.  Cook  Co.  V.  Beecher,  172  Fed.  166  (1909)  action  to  charge  directors  of 
corporation  with  payment  of  judgment  obtained  against  the  corporation  for 
infringement  of  a  patent;  Vose  v.  Roebuck  Weather-Strip  &  Wire  Screen 
Co.,  216  Fed.  523,  524-525  (1914)  reformation  of  contract  purporting  to 
grant  licenses  under  patents;  Holt  v.  Indiana  Manufacturing  Co.,  176  U.  S. 
68,  71,  20  S.  Ct.  272,  273,  44  L.  Ed.  374,  376  (1900)  suit  to  enjoin  taxes 
levied  on  patents  and  patent  rights;  Briggs  v.  United  Shoe  Co.,  239  U.  S. 
48,  49,  36  S.  Ct.  6,  60  L.  Ed.  138  (1915)  suit  to  enforce  payment  of  roy- 
alties; American  Well  Works  Company  v.  Layne  and  Bowler  Company,  241 
U.  S.  257,  258-259,  36  S.  Ct.  585;  586,  60  L.  Ed.  987,  988-989  (1916)  suit 
for  damages  to  business  caused  bv  a  threat  to  sue  under  the  patent  law; 
Odell  V.  F.  C.  Farnsworth  Co.,  250  U.  S.  501,  39  S.  Ct.  516,  63  L.  Ed.  —  (1919), 

In  the  following  cases  it  was  held  that  the  question  involved  was  one 
arising  under  the  patent  laws:  Victor  Talking  Maeh.  Co.  v.  The  Fair,  123 
Fed.  424,  425-426,  61  C.  C.  A.  58,  59-60  (1903);  Harrington  v.  Atlantic  & 
Pacific  Telegraph  Co.,  143  Fed.  329,  336  (1906);  Excelsior  W.  P.  Co.  v. 
Pacific  Bridge  Co.,  185  U.  S.  282,  285-295,  22  S.  Ct.  681,  682-686,  46  L.  Ed. 
910,  913-917  (1902)  ;  The  Fair  v.  Kohlor  Die  Co.,  228  U.  S.  22,  23-25,  33  S. 
Ct.  410,  411,  57  L.  Ed.  716,  717  (1913);  Healy  v.  Sea  Gull  Specialty  Co., 
237  U.   S.  479,  35  S.  Ct.,  658,  59  L.  Ed.  1056    (1915). 

When  jurisdiction  of  the  district  court  is  based  upon  the  fact  that  the 
case  arises  under  the  patent  laws  the  amount  in  controversy  is  immaterial, 
Swindell  v.  Youngstown  Sheet  &  Tube  Co.,  230  Fed.  438,  440,  144  C.  C. 
A.  580,  582  (1916)  ;  and  there  need  be  no  diversity  of  citizenship,  Bernardiu 
V.    Northall,    77   Fed.    849    (1897).— Ed, 


174  Cases  on  Federal  Procedure 

trade-mark,  "Trojan,"  duly  registered  after  10  years'  appropri- 
ation and  exclusive  use.  He  applied  it  to  an  ice  cream  disher  or 
spoon,  dipper  or  ladle,  for  accurately  measuring  the  amount  of  ice 
cream  taken  up  thereby  and  so  constructed  as  to  remove  the  eon- 
tents  into  another  receptacle  without  adhering  to  the  disher  or 
spoon.  It  was  also  so  constructed  as  to  be  easily  and  thoroughly 
cleansed.  This  spoon  or  ladle  is  of  simple  construction  and  has  a 
distinctive  and  an  attractive  appearance.  It  was  called  and  known 
as  the  "Gem."  It  was  well  known  in  the  trade  and  known  as  of 
the  complainant's  make  independent  of  the  trade-mark,  "Trojan," 
used  or  placed  thereon,  but  especially  when  that  name  was  found 
thereon.  The  complainant  used  this  name  "Trojan"  on  other 
goods  of  the  same  class  made  and  sold  by  him. 

Prior  to  the  commencement  of  this  action,  the  defendant,  or  the 
company  who  manufactures,  the  defendant  being  a  dealer  only, 
it  is  said,  commenced  manufacturing  and  selling  an  ice  cream 
dipper,  spoon,  disher,  or  ladle,  used  for  the  same  purpose,  and 
which,  as  to  the  bowl  and  some  of  its  parts,  resembled  the  spoon 
of  the  complainant.  This  had :  '  *  Clipper  Disher,  Pat.  Feb.  7,  '05. 
Geer  Mfg.  Co.,  Troy,  N.  Y." — on  the  handle.  A  later  one,  more 
nearly  resembling  complainant's  spoon  or  disher,  had  on  the 
handle:  "New  Clip  Disher,  Pat.  Pend.  H.  S.  Geer  Co.,  Troy, 
N.  Y. "  Later,  and  before  the  commencement  of  this  suit,  the  de- 
fendant put  out  another  dipper  or  ladle  approaching  very  much 
nearer  to  the  general  form,  construction,  and  appearance  of  the 
complainant's  spoon  or  disher,  and  on  the  handle  of  this  defendant 
put  the  words,  "Trojan  Disher,"  and  on  the  reverse  side,  "H.  S. 
Geer  Co.,  Troy,  N.  Y. "  Later  defendant  put  on  the  market  an 
almost  exact  duplicate  of  the  complainant's  spoon  or  disher  with 
the  same  marks,  and  later  one  that  merely  omitted  the  complain- 
ant's 1  rake-mark  on  the  dipper  or  ladle  itself,  but  which  when 
oflfered  for  sale  and  sold  had  on  the  box  containing  it  the  words: 
"Trojan  Ice  Cream  Disher.  Cup  Shape.  II.  S.  Geer  Co.,  Troy, 
N.  Y."    And  also,  "Directions  for  cleaning  Trojan  Spoons." 

The  defendant  was  clearly  infringing  the  complainant's  trade- 
mark "Trojan"  and  was  clearly  making  and  selling  a  substantial 
duplicate  of  the  complainant 's  (lipi)('r  or  ladle  and  taking  a  sub- 
stantial part  of  his  trade  and  injnring  him  in  his  business.  The 
defendant's  s])()on  or  ladle  as  finally  made  and  i)nt  on  the  market 
was  such  a  close  imitation  or  dnplieation  of  eomplainant's  spoon 
(ti-  ladle  tliat,  regardless  of  the  trach'-mark,  it  would  be  easily  taken 
and  pnrchased  for  the  spoon  or  ladle  of  complainant's  make,  and 
confusion  did  ocitur.     In  short,  defendant  by  so  making  its  spoon 


District  Courts  175 

or  ladle  in  the  form  and  style  of  complainant's  and  putting  on  the 
same  the  word  "Trojan"  was  clearly  passing  off  its  spoon  or  ladle 
as  that  of  complainant's  make  and  intending  so  to  do,  and  in  so 
doing  was  not  only  guilty  of  infringement  of  the  trade-mark,  but 
of  unfair  competition  in  trade.  The  defendant's  spoons  or  ladles 
were  made  by  one  process,  and  the  infringement  of  the  trade-mark 
and  the  construction  were  parts  of  one  act  and  related  to  this  one 
article.  The  single  purpose  of  these  acts  was  to  get  complainant's 
trade.  The  complainant  brought  suit  alleging  the  facts  and  char- 
acterizing them  as  both  infringement  of  the  trade-mark  and  unfair 
competition  in  trade  and  applied  for  a  preliminary  injunction 
restraining  or  enjoining  such  acts  which  resulted  in  a  single  wrong 
and  damages,  viz.,  the  impairment  of  complainant's  trade  by  pass- 
ing off  on  the  public  the  spoon  or  disher  of  defendant's  make  as 
those  of  complainant's  make.  The  injunction  order  was  granted 
and  has  not,  at  this  time,  been  appealed  from.  Thereupon,  on  the 
commencement  of  this  action,  the  defendant  wholly  ceased  to  use 
the  complainant's  trade-mark,  "Trojan,"  in  any  place  or  way. 
It  did  not  longer  place  it  on  the  spoon  or  ladle  or  on  the  package 
containing  it  or  in  its  advertisements.  In  short,  defendant  ceased 
to  infringe  the  trade-mark,  but  desires  to  make  or  to  sell  the  dip- 
pers, spoons,  or  ladles  made  in  such  close  imitation  of  complain- 
ant's dippers,  spoons,  or  ladles  as  above  described. 

The  injunction  order  contains  a  clause  which  enjoins  the  defend- 
ant from  making  or  selling  or  offering  for  sale  any  dipper,  spoon, 
or  ladle  made  in  such  close  imitation  of  the  complainant's  dipper, 
spoon  or  ladle  as  to  deceive  the  public  or  cause  the  one  to  be  taken 
or  purchased  as  the  other,  etc. ;  in  short,  it  enjoins  the  defendant 
from  committing  acts  in  the  future  in  reference  to  this  article 
which  amount  to  unfair  competition  in  trade  with  respect  thereto, 
but  which  acts  will  not  infringe  the  complainant's  trade-mark 
inasmuch  as  what  defendant  proposes  to  do  and  desires  to  do  will 
not  use  the  woixi  "Trojan"  in  any  way.  The  dipper  or  spoon 
defendant  desires  to  make  is  called  "New  Troy  Cup  Disher,"  in- 
stead of  "Trojan." 

Is  the  injunction  broader,  and  more  comprehensive  than  the 
facts  justify,  the  power  and  jurisdiction  of  this  court  in  the  prem- 
ises considered?  As  the  parties  are  all  citizens  of  the  State  of 
New  York,  this  court  has  no  jurisdiction  of  an  action  for  unfair 
competition  in  trade  pure  and  simple.  It  does  have  jurisdiction 
of  an  action  between  these  parties  for  infringement  of  the  trade- 
mark. 

(1)     If  acts  constituting  infringement  of  a  trade-mark  and  other 


176  Cases  on  Federal  Procedure 

acts  constituting  unfair  competition  in  trade  are  separate  and  inde- 
pendent acts,  even  though  they  all  relate  to  the  same  article  of 
manufacture,  each  set  of  acts  constitutes  a  separate  and  a  distinct 
cause  of  action,  of  one  of  which  this  court  has  jurisdiction  and  of 
the  other  of  which  it  has  no  jurisdiction.  In  such  a  case  this  court 
could  not  take  jurisdiction  of  the  acts  amounting  to  unfair  com- 
petition only  for  the  reason  it  has  jurisdiction  of  the  other  separate 
and  distinct  acts  amounting  to  infringement  of  a  trade-mark.  But 
when  the  wrongful  acts  are  not  separate  and  distinct,  but  are  all 
done  together  as  one  whole,  or  one  act,  as  was  the  case  here,  then 
the  facts  maj'  be  alleged  and  proved  and  the  wrongful  acts  en- 
joined. The  complainant  should  not  be  compelled  to  separate  the 
one  act  into  parts  and  allege  and  prove  in  the  Circuit  Court  of  the 
United  States  those  parts  of  the  act  which  constitute  infringement 
of  the  trade-mark  and  allege  and  prove  in  the  State  court  those 
parts  of  the  same  act  which  amount  to  unfair  competition  in  trade, 
thus  resorting  to  two  tribunals  to  right  one  wrong,  the  impair- 
ment of  his  business  by  the  diversion  of  a  part  thereof  by  another. 
The  Circuit  Court  of  the  United  States,  having  jurisdiction  of  the 
parties  and  of  the  subject-matter  for  the  purpose  of  enjoining  the 
infringement  of  the  trade-mark,  may  also  enjoin  all  wrongful  acts 
done  in  connection  with  the  infringement  which  augment  and 
aggregate  the  wrong.  Globe-Wernicke  Co.  v.  Fred  IMacey  Co.,  119 
Fed.  696,  703,  56  C.  C.  A.  304 ;  Siler  et  al.  v.  Louisville,  etc.,  R. 
Co.,  213  U.  S.  175,  29  Sup.  Ct.  451,  53  L.  Ed.  753. 

In  the  Globe-Wernicke  Case,  supra,  the  court,  Lurton,  Day,  and 
Severexs,  said: 

''The  bill  was  not  founded  on  two  separate  matters  or  transac- 
tions. The  conduct  of  the  appellee  complained  of  consisted  of  the 
same  acts.  The  legal  qualities  of  those  acts  were  in  some  respect 
different,  and  the  result  was  that  the  facts  presented  a  double 
aspect.  It  is  upon  this  consideration  that  such  a  bill  can  be  sus- 
tained against  an  objection  that  it  is  multifarious." 

(2)  But  can  the  court  enjoin  the  doing  of  acts  in  the  future 
not  done  in  connection  with  and  as  a  part  of  the  infringement  of 
the  trade-mark  or  of  an  infringement  thereof  for  the  reason  the 
same  acts  substantially  have  been  done  heretofore  in  connection 
with  infringement  of  llie  trade-mai'k?  If,  having  jurisdiction 
for  one  purpose,  the  con  it  may  retain  and  exercise  jurisdiction  for 
every  purpose,  still  ihaf  ])urpose  or  those  purposes  must  be  to 
enjoin  or  rostrjiin  some  act  or  acts  done  in  connection  with  the 
acts  creafing  llic  cause  of  action  wliich  gave  the  court  jurisdiction. 


District  Courts  177 

But  may  the  court  extend  its  jurisdiction  to  and  over  future  acts 
which  have  no  connection  with  an  infringement  of  the  trade-mark? 
In  short,  I  doubt  that  in  this  action  the  court  can  enjoin  the  doing 
of  acts  by  the  defendant  in  the  future  which,  if  done,  will  amount 
to  unfair  competition  in  trade  only.  Saxlehner  v.  Eisner  &  Men- 
delson  Co.,  179  U.  S.  19,  37,  41,  21  Sup.  Ct.  7,  45  L.  Ed.  60,  is  a 
case  where  the  trade-mark  was  infringed  and  the  shape  of  bottles 
and  color  of  labels  copied  and  the  whole  wrong  was  righted.  In 
Saxlehner  v.  Eisner,  147  Fed.  189,  77  C.  C.  A.  417,  the  last  head- 
note  reads : 

"That  a  corporation,  and,  through  it,  its  officers,  agents,  and 
servants,  had  been  enjoined  from  further  infringing  complainant's 
trade-marks,  and  from  conducting  a  business  campaign  of  unfair 
competition,  did  not  preclude  complainant  from  obtaining  an  in- 
junction restraining  certain  of  the  officers  in  their  individual 
capacity  from  performing  such  unwarranted  acts." 

As  a  condition  of  modifying  the  injunction,  the  defendant  offers 
to  give  a  bond  to  pay  all  damages,  etc.,  awarded  against  it  in  the 
action  and  to  keep  an  account  of  its  sales.  There  will  be  an  order 
modifying  the  injunction  so  as  to  permit  the  defendant  to  make 
and  sell  its  ice  cream  dippers,  ladles,  or  spoons  which  do  not  bear 
the  word  "Gem"  or  "Trojan"  in  any  form  or  combination  on  the 
article  itself  or  on  the  package  or  packages  containing  it  and  which 
are  not  advertised  as  the  Trojan  spoon,  dipper,  or  ladle,  provided 
it  executes  and  files  a  bond  to  complainant  in  the  sum  of  $5,000, 
conditioned  to  pay  all  costs  and  damages  awarded  against  it  in 
case  the  court  finally  holds  that  it  has  power  in  this  action  to 
enjoin  the  future  making  and  sale  of  dippers  or  spoons  of  the 
character  mentioned  entirely  disconnected  from  any  infringement 
of  the  trade-mark  "Trojan,"  and  also  keeps  an  account  of  its  sales 
to  be  rendered  to  this  complainant  if  directed  so  to  do. 


LOUISVILLE  &  NASHVILLE  R.  R.  CO.  v.  RICE. 

Supreme  Court  of  the  United  States.     1918. 

247  U.  S.  201,  38  St.  Ct.  429,  62  L.  Ed.  1071. 

Mr.  Justice  McReynoi-ds  delivered  the  opinion  of  the  court. 

Did  the  District  Court  rightly  decide  that  it  had  no  jurisdic- 
tion, is  the  only  question  presented. 

Plaintiff  in  error  sued  to  recover  one  hundred  and  forty-five 
Wheaton  C.  F.  P.— 12 


178  Cases  on  Federal  PKutEOLRE 

dollars  claimed  to  be  due  under  tariffs  approved  and  published  as 
required  by  Interstate  Commerce  Act,  for  disinfecting  fifty-eight 
cars  containing  live  stock  shipped  from  points  outside  the  State 
and  delivered  to  defendant,  the  consignee,  at  New  Orleans,  Louisi- 
ana. It  alleged  presentation  of  bills  covering  each  shipment  and 
payment  by  defendant  of  all  charges  except  those  for  disinfecting 
— two  dollars  and  fifty  cents  per  car. 

Answering,  defendant  admitted  the  shipments  were  interstate; 
that  he  paid  all  lawful  charges,  except  those  sued  for ;  and  that 
these  had  been  properly  prescribed  under  and  pursuant  to  the 
Interstate  Commerce  Act.  But  he  denied  liability  for  these  rea- 
sons :  As  the  carrier  well  knew,  or  should  have  known,  he  had  long 
been  engaged  in  the  business  of  factor  or  commission  merchant ;  in 
due  course  while  acting  as  representative  for  their  owners  and 
consignors  he  received  the  live  stock,  sold  them  immediately  upon 
arrival,  deducted  expenses,  etc.,  and  remitted  balance  of  proceeds 
to  his  principals ;  when  the  cars  arrived  he  paid  all  charges  actu- 
ally demanded;  he  w^as  not  then  advised  and  remained  unaware 
that  any  others  were  contemplated  until  such  balance  had  been 
remitted.  Having  led  him  to  believe  the  amount  asked  and  paid 
before  he  remitted  entire  net  proceeds  constituted  full  settlement, 
the  carrier  is  now  estopped  from  demanding  more  of  him. 

The  trial  court  upon  its  own  initiative  dismissed  the  action  for 
want  of  jurisdiction. 

Section  24  of  the  Judicial  Code  provides  that  regardless  of 
amount  involved  District  courts  shall  have  original  jurisdiction 
"of  all  suits  and  proceedings  arising  under  an^'  law  regulating 
commerce."  The  Interstate  Commerce  Act  requires  carrier  to 
collect  and  consignee  to  pay  all  lawful-  charges  duly  prescribed  by 
the  tariff  in  respect  of  every  shipment.  Their  duty  and  obliga- 
tion grow  out  of  and  depend  upon  that  act. 

In  support  of  the  trial  court  it  is  said :  There  is  no  jurisdiction 
unless  the  suit  in  part  at  least  arises  out  of  a  controversy  in  regard 
to  operation  or  effect  of  the  act  of  Congress.  Here  there  is  no 
dispute  as  to  legality  of  rate  or  its  application  to  the  shipments ^ 
and  consignee's  liability  was  fully  discharged  upon  payment  by 
him  of  amount  demanded  at  time  of  delivery  and  surrender  of 
the  carrier's  lien. 

"Cases  arising  under  the  laws  of  the  United  States  arc  such  as 
grow  out  of  the  legislation  of  Congress."  Tennessee  v.  Davis, 
100  TJ.  S.  257,  264.  "Whether  a  party  chiims  a  right  under  the 
Constitution  or  laws  of  the  United  States  is  to  be  ascertained  by 


District  Courts  179 

the  legal  construction  of  its  own  allegations."  Central  R.  R.  Co. 
of  New  Jersey  v.  Mills,  113  U.  S.  249,  257.  ''If  the  plaintiff  really 
makes  a  substantial  claim  under  an  act  of  Congress  there  is  juris- 
diction whether  the  claim  ultimately  be  held  good  or  bad."  The 
Fair  v.  Kohler  Die  Co.,  228  U.  S.  22,  25.  A  suit  arises  under  an 
act  of  Congress  when  ''it  really  and  substantially  involves  a  dis- 
pute or  controversy  respecting  the  validity,  construction  or  effect 
of  such  a  law,  upon  the  determination  of  which  the  result  de- 
pends." Shulthis  v.  McDougal,  225  U.  S.  561,  569.  As  to  inter- 
state shipments  "there  can  be  no  question  that,  since  the  decision 
in  the  Croninger  Case  (226  U.  S.  491),  the  parties  are  held  to  the 
responsibilities  imposed  by  the  Federal  law,  to  the  exclusion  of 
all  other  rules  of  obligation."  St.  Louis,  Iron  Mountain  &  South- 
ern Ry.  Co.  V.  Starbird,  243  U.  S.  592,  595 ;  Louisville  &  Nashville 
R.  R.  Co.  V.  Maxwell,  237  U.  S.  94,  97. 

The  railroad  company  set  up  a  claim  based  upon  provisions  of  a 
tariff  duly  filed,  published  and  approved  as  required  by  Interstate 
Commerce  Act;  result  of  the  action  necessarily  depended  upon 
construction  and  effect  of  that  act. 

We  think  the  District  Court  had  jurisdiction.  Its  judgment  is 
accordingly  reversed  and  the  cause  remanded  for  further  pro- 
ceedings in  conformity  with  this  opinion. 

Reversed} 


HELWIG  V.  UNITED  STATES. 

Supreme  Court  of  the  United  States.     1903. 

188  U.  S.  605,  23  8.  Ct.  427,  47  L.  Ed.  614. 

The  following  question  was  certified  to  this  court : 
"Has  the  United  States  Circuit  Court  jurisdiction  of  an  action 
to  recover  the  aforesaid  '  further  sum '  accruing  '  in  addition  to  the 
duties  imposed  by  law%'  under  the  provisions  of  section  seven  of 
the  act  of  June  10,  1890,  26  Stat.  131?"  ^ 

1  See  also  "Wells  Fargo  &  Co.  v.   Cuneo,  241   Fed.  726   (1917). 

But  see  Banner  v.  The  Wabash  Railroad  Co.,  131  la.  405,  108  N.  W.  759 
(1906)  ;  Storm  Lake  Tub  &  Tank  F.  v.  Minneapolis  &  St.  L.  R.  Co.,  209 
Fed.   895,   898-904    (1913).— Ed. 

2  The  rest  of  the  facts  are  omitted,  as  is  a  portion  of  the  opinion. — Ed. 


180  Cases  on  Federal  Procedure 

Mr.  Justice  Peckham,  after  stating  the  facts,  delivered  the 
opinion  of  the  court. 

That  part  of  section  7  of  the  Customs  Administrative  Act  of 
1890,  26  Stat.  131,  134,  which  relates  to  the  question  involved  in 
this  case  is  set  forth  in  the  margin.^ 

The  sole  question  is  whether  the  sum  imposed  by  section  7, 
already  quoted,  is  a  penalty? 

Without  other  reference  than  to  the  language  of  the  statute 
itself,  we  should  conclude  that  the  sum  imposed  therein  was  a 
penalty.  It  is  not  imposed  upon  the  importation  of  all  goods,  but 
only  upon  the  importer  in  certain  cases  which  are  stated  in  the 
statute,  and  it  is  clear  that  the  sum  is  not  imposed  for  any  purpose 
of  revenue,  but  is  in  addition  to  the  duties  imposed  upon  the  par- 
ticular article  imported,  and  in  each  individual  case  when  the  sum 
is  imposed  it  is  based  upon  the  particular  act  of  the  importer. 
That  particular  act  is  his  undervaluation  of  the  goods  imported, 
and  it  is  without  doubt  a  punishment  upon  the  importer  on  account 
of  it.  Whether  the  statute  defines  it  in  terms  as  a  punishment  or 
penalty  is  not  important,  if  the  nature  of  the  provision  itself  be 
of  that  character.  If  it  be  said  that  the  provision  operates  as  a 
warning  to  importers  to  be  careful  and  to  be  honest,  it  is  a  warn- 
ing which  is  efficacious  only  by  reason  of  the  resulting  imposition 

8  Sec.  7.  *  *  *  And  the  collector  within  whose  district  any  merchandise 
may  be  imported  or  entered,  whether  the  same  has  been  actually  purchased 
or  procured  otherwise  than  by  purchase,  shall  cause  the  actual  market  value 
or  wholesale  price  of  such  merchandise  to  be  appraised;  and  if  the  appraised 
value  of  any  article  of  imported  merchandise  shall  exceed  by  more  than 
ten  per  centum  the  vahie  declared  in  the  entry,  there  shall  be  levied,  col- 
lected, and  paid,  in  addition  to  the  duties  imposed  by  law  on  such  merchan- 
dise, a  further  sum  equal  to  two  per  centum  of  the  total  appraised  value 
for  each  one  per  centum  that  such  appraised  value  exceeds  the  value  declared 
in  the  entry;  and  the  additional  duties  shall  only  apply  to  the  particular 
article  or  articles  in  each  invoice  which  are  undervalued;  and  if  such  ap- 
praised value  shall  exceed  the  value  declared  in  the  entry  more  than  forty 
per  centum,  such  entry  may  bo  held  to  be  presumptively  fraudulent,  and 
the  collector  of  custonis  may  seizt  sucli  mcrcliamlise  and  proceed  as  in  cases 
of  forfeiture  for  violations  of  the  customs  laws;  and  in  any  legal  proceed- 
inj^H  which  may  result  from  such  seizure  the  fact  of  such  undervaluation 
Hhall  be  presumptive  of  evidence  of  fraud,  and  the  burden  of  jiroof  shall  be 
on  the  claimant  to  rebut  tlie  same,  and  forfeiture  shall  be  adjudged  unless 
he  shall  nbwt  said  jiresuinption  of  fraudulent  intent  by  sufficient  evidence: 
Provided,  Tiiat  the  forfeitures  provided  for  in  this  section  shall  apply  to 
the  whole  of  the  merchandise  or  the  value  thereof  in  the  case  or  ]iackage  con- 
taining the  particular  article  or  artich's  in  ea<'h  invoice  whidi  are  under- 
valued; And  jirovided  further,  That  all  a<Mitional  duties,  penalties,  or  for- 
feiturcH,  api»licalile  to  merchandise  entered  by  a  duly  certified  invoice  shall 
be  alik(»  applicuMe  to  gooils  entered  by  a  pro  forma  invoice  or  statement 
in  form  of  an  invoice.  The  duty  shall  not,  however,  be  assessed  upon  an 
amount   less   than    tin-    invoice   or   entered    value. 


District  Courts  181 

of  the  "further  sum,"  in  addition  to  the  duties,  provided  for  by 
the  statute. 

This  case  is  a  good  illustration  of  the  penal  features  of  the 
statute.  The  aggregate  value  of  the  merchandise  as  entered  by 
the  importer  was  $13,252,  and  the  amount  of  duty  provided  for 
by  the  statute  (ten  per  centum)  was  $1,325.20.  The  final  re- 
appraisement  made  under  section  13  of  the  same  act  was  $16,792.20, 
and  the  duties,  $1,679.20,  the  difference  being  $354;  yet  this  dif- 
ference in  valuation  between  the  importer  and  the  appraisers, 
though  the  valuation  of  the  importer  was  made  without  intent  to 
defraud,  brought  upon  him  the  imposition,  under  the  statute,  sec- 
tion 7,  of  the  additional  sum  of  $9,067.68,  being  the  "further  sum" 
spoken  of  in  the  statute  in  addition  to  the  payment  of  the  $354 
of  duty,  which  was  demanded  of  the  importer  by  reason  of  this 
difference.  Now  what  can  this  be  but  a  punishment,  or,  in  other 
words,  a  penalty  for  undervaluation,  whether  innocently  done  or 
not?  It  certainly  was  no  reward  of  merit,  and  whether  called  a 
"further  sum"  or  an  "additional  duty"  or  by  some  other  name, 
the  amount  imposed  was  so  large  in  proportion  to  the  value  of  the 
merchandise  imported,  as  to  show  beyond  doubt  that  it  was  a  sum 
imposed  not,  in  fact,  as  a  duty  upon  an  imported  article,  but  as  a 
penalty  and  nothing  else. 

The  statute  also  provides  that,  if  the  appraised  value  exceeds 
by  more  than  forty  per  centum  the  value  declared  in  the  entry, 
then  the  entry  value  is  presumed  fraudulent  and  the  whole  prop- 
erty is  to  be  seized  by  the  collector,  who  is  to  proceed  as  in  the 
case  of  a  forfeiture,  and  the  burden  of  showing  that  the  under- 
valuation was  not  fraudulent  is  cast  upon  the  importer.  Now, 
whether  the  excess  in  valuation  on  the  reappraisement  is  more  or 
less  than  forty  per  centum  of  the  value  declared  in  the  entry, 
seems  to  be  important  only  upon  the  question  of  the  presumption 
of  fraud  and  the  consequent  forfeiture  of  the  whole  property.  If 
more  than  forty  per  centum,  the  presumption  of  fraud  is  declared 
by  the  statute  and  the  property  is  forfeited,  unless  the  importer 
shows  there  was  no  fraud.  If  less,  the  sum  imposed  by  the  statute 
is  to  be  paid,  but  the  property  is  not  forfeited.  In  the  case  of 
good  faith,  it  is  simply  a  less  penalty  than  in  the  case  of  fraud. 
It  is,  however,  argued  that  the  error  for  undervaluation  not  fraud- 
ulent is  repaired  by  imposing  an  additional  duty  on  the  particu- 
lar goods  in  such  invoice  which  have  been  undervalued,  and  there 
is  no  penalty,  a  simple  enlarged  duty  upon  merchandise,  while  in 
the  other  ease,  the  presumed  fraudulent  undervaluation    (if  the 


182  Cases  on  Federal  Procedure 

fraud  be  found),  the  whole  of  the  merchandise  is  forfeited  by  the 
expressed  terms  of  the  statute. 

Whether  the  error  is  repaired  by  imposing  the  sum  named  as  an 
additional  duty,  is  not  material  in  the  consideration  of  the  nature 
of  the  imposition.  It  is  still  a  punishment  and  nothing  else,  be- 
cause of  the  carelessness,  ignorance  or  mistake,  without  fraudulent 
intent,  upon  the  part  of  the  importer.  If  the  fraudulent  intent 
were  present,  the  penalty  would  be  enlarged  and  the  goods  for- 
feited. In  both  cases,  the  nature  of  the  penalty  is  the  same,  only 
in  one  case  it  is  satisfied  b}^  the  imposition  of  a  certain  amount  of 
money,  while  in  the  other  a  total  forfeiture  is  demanded. 

To  the  question,  why  the  additional  sum  is  imposed  in  the  one 
case,  or  why  the  goods  are  forfeited  in  the  other,  there  can  be  but 
one  answer.  It  is  because  of  the  action  of  the  importer  with  rela- 
tion to  the  importation  in  question,  and  in  one  ease  such  action 
calls  down  upon  his  head  punishment  by  way  of  a  money  imposi- 
tion, and  in  the  other  it  is  a  forfeiture  of  his  property.  In  either 
case  there  is  to  be  punishment,  either  for  carelessness  or  fraud. 

Although  the  statute,  under  section  7,  supra,  terms  the  money 
demanded  as  a  "further  sum,"  and  does  not  describe  it  as  a  pen- 
alty, still  the  use  of  those  words  does  not  change  the  nature  and 
character  of  the  enactment.  Congress  may  enact  that  such  a  pro- 
vision shall  not  be  considered  as  a  penalty  or  in  the  nature  of  one, 
with  reference  to  the  further  action  of  the  officers  of  the  Govern- 
ment, or  with  reference  to  the  distribution  of  the  moneys  thus 
paid,  or  with  reference  to  its  effect  upon  the  individual,  and  it  is 
the  duty  of  the  court  to  be  governed  by  such  statutory  direction, 
but  the  intrinsic  nature  of  the  provision  remains,  and,  in  the  ab- 
sence of  any  declaration  by  Congress  affecting  the  manner  in  which 
the  provision  shall  be  treated,  courts  must  decide  the  matter  in 
accordance  with  their  views  of  the  nature  of  the  act.  Although  the 
sum  imposed  by  reason  of  undervaluation  may  be  simply  described 
as  "a  further  sum"  or  "an  addilioual  duty,"  if  it  is  yet  so  enor- 
mously in  excess  of  llio  greatest  amount  of  regular  duty  ever  im- 
posed upon  an  ai-ticle  of  the  same  nature,  and  it  is  imposed  by 
reason  of  the  action  of  llic  importer,  sucli  facts  clearly  show  it  is 
a  fx'nalty  i"  its  intrinsic  natni'c,  and  the  failure  of  the  statute 
to  designate  it  as  a  penalty,  but  describing  it  as  "a  further  sum," 
or  "an  additiona!  duty,"  will  not  work  a  statutory  alteration  of 
the  n;ilni('  of  the  iiiipf)sition,  and  it  will  be  regarded  as  a  penalty 
when  by  its  very  n;i1iiir  it  is  a  penalty.     It  is  impossible,  judging 


District  Courts  183 

simply  from  its  language,  to  hold  this  provision  to  be  other  than 
penal  in  its  nature.     *     *     * 

In  Bartlett  v.  Kane,  16  How.  263,  decided  in  1853  under  the 
statute  of  1846,  where  the  question  of  drawback  arose,  the  addi- 
tional duty  of  twenty  per  centum  mentioned  in  the  act  was  re- 
garded as  in  the  nature  of  a  penalty.  Mr.  Justice  Campbell,  in 
delivering  the  opinion  of  the  court  (at  page  274),  said: 

"An  examination  of  the  revenue  laws  upon  the  subject  of  levy- 
ing additional  duties,  in  consequence  of  the  fact  of  an  undervalua- 
tion by  the  importer,  shows  that  they  were  exacted  as  discourage- 
ments to  fraud,  and  to  prevent  efforts  by  importers  to  escape  the 
legal  rates  of  duty.  In  several  of  the  acts,  this  additioral  duty 
has  been  distributed  among  officers  of  the  customs  upon  the  same 
conditions  as  penalties  and  forfeitures.  As  between  the  United 
States  and  the  importer,  and  in  reference  to  the  subject  of  draw- 
back and  debenture,  it  must  still  be  regarded  in  the  light  of  a 
penal  duty.  *  *  *  it  does  not  include,  in  its  purview,  any 
return  of  the  forfeitures  or  amercements  resulting  from  illegal  or 
fraudulent  dealings  on  the  part  of  the  importer  or  his  agents. 
Those  do  not  fall  within  the  regular  administration  of  the  revenue 
system,  nor  does  the  Government  comprehend  them  within  its  regu- 
lar estimates  of  supply.  They  are  the  compensation  for  a  vio- 
lated law,  and  are  designed  to  operate  as  checks  and  restraints 
upon  fraud  and  injustice."     *     *     * 

We  think  the  sum  sought  to  be  recovered  in  this  action  was  a 
penalty,  and  the  Circuit  Court,  therefore,  had  no  jurisdic- 
tion.    *     *     * 

The  question  propounded  by  the  Circuit  Court  of  Appeals  is 
answered  in  the  negative,  and  it  will  be 

So  certified.* 


Debenture. 

1  Words  &  Phrases  (2nd  Series)  1126. 

A  "debenture"  is  a  certificate  given  in  pursuance  of  law,  by 
the  collector  of  a  port  of  entry,  for  a  certain  sum  due  by  the  United 
States,  payable  at  a  time  therein  mentioned  to  an  importer,  for 
drawback  of  duties  on  merchandise  imported  and  exported  by 
him,  provided  the  duties  shall  have  been  discharged  prior  to  the 
time  aforesaid.    W.  H.  Thomas  &  Son  Co.  v.  Barnett,  135  Fed. 

4  See  also  Rosenberg  v.  IJnion  Iron  Works,  109  Fed.  844,  845  (1901); 
Lees  V.  IT.  S.,  150  U.  S.  476,  478,  14  S.  Ct.  163,  164,  37  L.  Ed.  1150.  1150- 
1151    (1893).— Ed. 


184  Cases  on  Federal  Procedure 

172,  172  (quoting  and  adopting  definition  in  Bouvier's  Law  Dic- 
tionary). 

Drawback. 

1  Bouvier's  Law  Dictionary  (Rawle's  3rd  Revision)  940. 

An  allowance  made  by  the  Government  to  merchants  on  the  re- 
exportation of  certain  imported  goods  liable  to  duties,  which  in 
some  cases  consists  of  the  whole,  in  others  of  a  part,  of  the  duties 
which  had  been  paid  upon  the  importation.  Goods  can  thus  be 
sold  in  a  foreign  market  at  their  natural  cost  in  the  home  mar- 
ket.   See  U.  S.  R.  S.  tit.  34,  C.  9. 


CRAWFORD  V.  JOHNSON. 

Circuit  Court,  D.  Oregon.     1868. 

6  Fed.  Cas.  No.  3,369,  p.  777,  1  Deady,  457. 

Deadt,  District  Judge. — From  the  complaint  it  appears,  that 
on  and  prior  to  November  1,  1866,  and  ever  since,  the  plaintiff 
was  and  has  been  collector  of  internal  revenue  for  the  district  of 
Oregon,  and  that  on  or  about  said  November  1,  the  plaintiff  ap- 
pointed the  defendant  Johnson,  deputy  collector  of  internal  reve- 
nue for  the  sixth  assessment  district  of  Oregon,  and  that  said 
defendant  as  principal,  with  the  defendants  Tapp  and  Smith  as 
sureties,  on  said  November  1,  executed  and  delivered  to  the  plain- 
tiff, as  collector  aforesaid,  a  bond  in  the  penal  sum  of  $2,000,  to 
be  void  upon  the  condition  that  said  Johnson  would  faithfully 
perform  the  duties  of  deputy  collector  for  the  district  aforesaid, 
etc. ;  and  that  the  defendant  Johnson  failed  to  account  for  the 
sum  of  .$1,978.42,  of  taxes  placed  in  his  hand  for  collection,  but 
collected  the  same  by  virtue  of  his  said  office,  and  converted  the 
amount  to  his  own  use,  "for  which  sum  the  plaintiff  is  liable  to 
account  for  and  pay  to  the  United  States";  and  that  said  plaintiff 
by  reason  of  such  failure,  has  been  put  to  $21.58  expense,  in  addi- 
tion 1o  1ho  sum  aforesaid,  for  which  sum  of  $2,000  he  prays 
judgiiiciil. 

A  proviso  to  section  07  of  the  Act  of  July  13,  1866  (14  Stat. 
172)  provides:  "That  if  any  ofliccr  ai)|)()intc(l  nnder  and  by  virtue 
of  any  act  to  provide  internal  revenue,  oi*  any  ])erson  acting  under 
or  by  ;iutlioiity  of  any  sud)  officer,  shall  receive  any  injury  to  his 
person  or  iiro|ieil\-  for  or  on  ;iccounf  of  any  act  by  liim  done,  under 


District  Courts  185 

any  law  of  the  United  States,  for  the  collection  of  taxes,  he  shall 
be  entitled  to  maintain  a  suit  for  damages  therefor,  in  the  Circuit 
Court  of  the  United  States,  in  the  district  where  the  party  doing 
the  injury  may  reside  or  shall  be  found."  Upon  this  proviso, 
counsel  for  plaintiff  rests  the  jurisdiction  of  this  court.  On  the 
argument,  counsel  for  Smith  practically  abandoned  the  objection 
to  the  jurisdiction  of  the  court.  In  this  respect,  the  demurrer 
seems  to  have  interposed  upon  the  impression  that  the  plaintiff 
relied  upon  a  similar  provision  in  section  2  of  the  Act  of  March  2, 
1833  (4  Stat.  632),  concerning  "the  collection  of  duties  on  im- 
ports," to  support  the  jurisdiction  of  this  court,  and  that  such 
provision  only  applied  to  the  collection  of  external  revenue — 
duties  on  imports.  But  the  proviso  quoted  from  the  Act  of  1866, 
gives  the  same  jurisdiction  to  this  court  in  cases  of  actions  for 
injuries  arising  from  acts  done  under  the  internal  law,  as  under 
the  laws  for  the  collection  of  duties  on  imports. 

The  objection  that  the  complaint  does  not  state  facts  sufficient 
to  constitute  a  cause  of  action,  is,  I  think,  not  well  taken.  True, 
the  complaint  only  states  that  the  plaintiff  is  liable  to  pay  the 
money  converted  by  his  deputy,  to  the  United  States,  and  under 
ordinary  circumstances  a  mere  liability  to  suffer  from  the  acts  or 
omissions  of  another,  does  not  give  a  right  of  action  against  such 
other.  Some  injury  must  actually  result  from  such  act  or  omis- 
sion. A  mere  liability  to  be  injured  is  not  equivalent  to  an  actual 
injury.  But  in  this  case,  I  think  the  plaintiff  is  more  than  merely 
liable  to  the  United  States  for  this  money.  The  law  makes  him 
absolutely  responsible  for  the  conduct  of  his  deputies,  and  also 
charges  him  with  the  whole  of  the  taxes  contained  in  the  lists  de- 
livered to  him  for  collection.  Prima  facie,  the  amount  of  the  tax 
list  is  a  fixed  and  ascertained  indebtedness,  for  the  payment  of 
which  he  has  given  bond.  This  sum  collected  by  Johnson,  he  is 
bound  to  pay.  The  condition  of  the  bond  is  to  keep  the  plaintiff 
harmless  from  any  liability  on  account  of  any  act  or  omission  of 
Johnson's.  In  this  respect  the  complaint  follows  the  terms  of  the 
condition,  and,  so  far  as  the  bond  is  concerned,  is  a  sufficient  state- 
ment of  a  cause  of  action  in  any  view  of  the  matter.  But  it  is 
doubtful  if  this  court  has  jurisdiction  of  an  action  between  these 
parties  for  a  mere  liability  upon  this  bond,  because  the  Act  of 
1866  limits  the  jurisdiction  to  cases  where  the  officer  or  person 
shall  receive  an  injurj^  to  his  person  or  property.  Instead  of  mak- 
ing the  allegation  of  the  complaint  in  the  language  of  the  bond,  it 
would  have  been  proper  to  have  averred  the  fact  to  be,  as  it  was 


186  Cases  on  Federal  Procedure 

admitted  on  the  argument,  that  the  plaintiff  had  already  paid  over 
the  amount  to  the  United  States.  If  so,  he  has  received  an  injury 
to  his  property  to  that  extent — he  has  lost  so  much  of  it  on  account 
of  his  act  in  appointing  Johnson  deputy  collector  of  taxes.  But  I 
think  it  proper,  under  the  circumstances,  to  hold,  that  as  this 
amount  of  taxes  was  charged  to  the  plaintiff  by  the  Government, 
the  mone}'  for  the  time  being  is  to  be  considered  as  his  own,  and 
therefore  taken  or  embezzled  from  him  by  Johnson,  to  his  injury. 
The  demurrer  is  overruled  and  judgment  must  be  given  for  the 
plaintiff.^ 


Revised  Statutes,  Section  1980;  U.  S.  Compiled  Statutes,  1918, 
Compact  Edition,  Section  3933;  U,  S.  Compiled  Statutes,  1916 
(Annotated)  Section  3933;  1  Federal  Statutes  (Annotated)  p. 
796. 

(1)  Conspiracies;  preventing  officer  from  performing  duties — 
First.  If  two  or  more  persons  in  any  State  or  Territory  conspire 
to  prevent,  by  force,  intimidation,  or  threat,  any  person  from  ac- 
cepting or  holding  any  ofSce,  trus^,  or  place  of  confidence  under 
the  United  States,  or  from  discharging  any  duties  thereof;  or  to 
induce  by  like  means  any  officer  of  the  United  States  to  leave  any 
State,  district,  or  place,  where  his  duties  as  an  officer  are  required 
to  be  performed,  or  to  injure  him  in  his  person  or  property  on 
account  of  his  lawful  discharge  of  the  duties  of  his  office,  or  while 
engaged  in  the  lawful  discharge  thereof,  or  to  injure  his  property 
so  as  to  molest,  interrupt,  hinder,  or  impede  him  in  the  discharge 
of  his  official  duties; 

(2)  Same;  to  intimidate  party,  witness  or  juror  or  obstruct 
justice — Second.  If  two  or  more  persons  in  any  State  or  Terri- 
tory conspire  to  deter,  by  force,  intimidation,  or  threat,  any  party 
or  witness  in  any  court  of  the  Thiited  States  from  attending  such 
court,  or  from  testifying  to  any  matter  pending  therein,  freely, 
full}',  and  truthfully,  or  to  injure  such  party  or  witness  in  his. 
person  or  property  on  account  of  his  having  so  attended  or  testi- 
fied, or  to  influence  the  verdict,  presentment,  or  indictment  of  any 
grand  or  petit  juror  in  any  such  court,  or  to  injure  such  juror  in 
his  person  or  f)ro|)er1y  on  account  of  any  verdict,  presentment,  or 
indictment  lawfully  assented  to  by  him,  or  of  his  being  or  having 
been  such  juror;  or  if  two  or  more  persons  conspire  for  the  pur- 
pose of  impeding,  hiiuhTing,  obstructing,  or  defeating,  in  any  man- 

1  Tlic   ojiinioii    only    is   roprintpcl. — Ed. 


District  Courts  187 

ner,  the  due  course  of  justice  in  any  State  or  Territory,  with  in- 
tent to  deny  to  any  citizen  the  equal  protection  of  the  laws,  or  to 
injure  him  or  his  property  for  lawfully  enforcing,  or  attempting 
to  enforce,  the  right  of  any  person,  or  jslass  of  persons,  to  the  equal 
protection  of  the  laws; 

(3)  Same;  to  deprive  citizen  of  rights  or  privileges — Third. 
If  two  or  more  persons  in  any  State  or  Territory  conspire,  or  go 
in  disguise  on  the  highway  or  on  the  premises  of  another,  for  the 
purpose  of  depriving,  either  directly  or  indirectly,  any  person  or 
class  of  persons  of  the  equal  protection  of  the  laws,  or  of  equal 
privileges  and  immunities  under  the  laws ;  or  for  the  purpose  of 
preventing  or  hindering  the  constituted  authorities  of  any  State  or 
Territory  from  giving  or  securing  to  all  persons  within  such  State 
or  Territory  the  equal  protection  of  the  laws;  or  if  two  or  more 
persons  conspire  to  prevent  by  force,  intimidation,  or  threat,  any 
citizen  who  is  lawfully  entitled  to  vote,  from  giving  his  support  or 
advocacy  in  a  legal  manner,  toward  or  in  favor  of  the  election  of 
any  lawfully  qualified  person  as  an  elector  for  President  or  Vice- 
President,  or  as  a  member  of  Congress  of  the  United  States ;  or  to 
injure  any  citizen  in  person  or  property  on  account  of  such  sup- 
port or  advocacy;  in  any  case  of  conspiracy  set  forth  in  this  sec- 
tion, if  one  or  more  persons  engaged  therein  do,  or  cause  to  be 
done,  any  act  in  furtherance  of  the  object  of  such  conspiracy, 
whereby  another  is  injured  in  his  person  or  property,  or  deprived 
of  having  and  exercising  any  right  or  privilege  of  a  citizen  of  the 
United  States,  the  party  so  injured  or  deprived  may  have  an  ac- 
tion for  the  recovery  of  damages,  occasioned  by  such  injury  or 
deprivation,  against  any  one  or  more  of  the  conspirators.* 


SIMPSON  V.  GEARY. 

District  Court,  D.  Arizona.     1913. 

204  Fed.  507. 

Morrow,  Circuit  Judge. — It  is  alleged  in  the  bill  of  complaint 
that  the  complainants  are  citizens  of  the  State  of  New  Mexico; 

1  As  to  what  rights  and  privilegres  one  has  as  a  citizen  of  the  United  States, 
see  United  States  v.  Sanges,  48  Fed.  78  (1891). 

For  the  meaning  of  "citizen"  as  nsed  in  section  24,  subdivision  12  of 
the  Judicial  Code  and  this  statute,  see  Baldwin  v.  Franks,  120  U.  S.  678, 
690-692,  7  S.  Ct.  656,   661-663,  30  L.  Ed.   766,  770-771    (1887). 

For  the  meaning  of  "conspiracy"  as  used  in  the  same  statutes,  see  U.  S. 
V.    Cole,   153   Fed.   801,   803-804    (1907).— Ed. 


188  Cases  on  Federal  Procedure 

that  the  Atchison,  Topeka  &  Santa  Fe  Railway  Company  is  a  cor- 
poration of  the  State  of  Kansas,  and  a  resident  and  citizen  of  that 
State  ;•  that  the  other  defendants  are  each  residents  and  citizens  of 
the  State  of  Arizona.  It  is  further  alleged  that  the  complainants 
are,  and  have  been  for  a  number  of  3-ears,  employed  by  the  de- 
fendant the  Atchison,  Topeka  &  Santa  Fe  Railway  Company,  as 
porters  upon  the  defendant's  trains,  and  that  they  are  also  brake- 
men  and  flagmen  on  said  trains;  that  by  an  act  of  the  Legislature 
of  the  State  of  Arizona  (Act  of  May  7,  1912 ;  Session  Laws  of 
Arizona,  p.  31)  it  is  provided  (section  3)  that  all  passenger,  mail, 
or  express  trains,  composed  of  six  or  more  cars,  and  operated  out- 
side of  the  3'ard  limits,  shall  be  equipped  with  and  shall  carry  a 
crew  consisting  of  not  less  than  one  engineer,  one  fireman,  one 
conductor,  one  baggage  master,  one  flagman,  and  one  brakeman ; 
that  by  section  8  it  is  provided  that  all  flagmen  mentioned  in  the 
act  shall  have  had  at  least  one  year's  experience  as  brakemen;  that 
the  defendant  railway  company  has  notified  complainants  that 
under  said  law  they  were  not  eligible  for  the  positions  of  brakemen 
or  flagmen,  and  the  said  defendant  would  become  liable  to  the  pen- 
alties prescribed  by  said  statute  should  it  retain  complainants  in 
its  emplo}'',  and  has  notified  complainants  that  it  would  have  to 
replace  them  by  others  on  December  1,  1912.  It  is  alleged  in  the 
bill  that  each  of  the  complainants  receives  a  salary  of  $780  per 
year,  amounting  in  the  aggregate  to  $7,020  per  annum.  Com- 
plainants seek  by  the  present  bill  to  enjoin  the  defendants,  as 
officers  of  the  State,  from  enforcing  the  penalties  prescribed  by 
the  act  of  Legislature  complained  of,  against  the  defendant  the 
Atchison,  Topeka  &  Santa  Fe  Railway  Company,  if  said  defendant 
company  does  not  discharge  the  complainants  from  its  service,  and 
to  enjoin  the  railway  company  from  discharging  the  complainants 
from  their  employment. 

The  Attorney  General  of  the  State  of  Arizona,  appearing  spe- 
cially for  all  of  the  defendants  other  than  the  Atchison,  Topeka  & 
Santa  Fe  Railway  Company,  has  interposed  a  motion  to  dismiss 
the  bill  of  complaint  on  the  ground  that  it  appears  upon  the  face 
of  the  complaint  that  this  court  has  no  jurisdiction  of  the 
cause.     *     *     * 

lint  the  complainants  contend  thai  their  ('as(>  comes  within  the 
jurisdiction  of  flic  court  under  the  provisions  of  the  Fourteenth 
Amendment  to  the  Constitution  of  the  United  States,  and  the 
fourteenth   subdivision  of  section  24  of  the  Judicial   Code.     The 


District  Courts  189 

latter  provides  that  District  courts  shall  have  original  jurisdic- 
tion— "of  all  suits,  at  law  or  in  equity,  authorized  by  law  to  be 
brought  by  any  person  to  redress  deprivation,  under  color  of  any 
law,  statute,  ordinance,  regulation,  custom  or  usage  of  any  State,  of 
any  right,  privilege  or  immunity  secured  by  the  Constitution  of  the 
United  States,  or  of  any  right  secured  by  any  law  of  the  United 
States  providing  for  equal  rights  of  citizens  of  the  United  States, 
or  of  all  persons  within  the  jurisdiction  of  the  United  States." 

As  the  amount  in  dispute  is  not  an  element  of  jurisdiction  under 
this  statute,  the  complainants  invoke  the  jurisdiction  of  the  court 
without  regard  to  that  limitation  contained  in  the  first  subdivision 
of  section  24  of  the  Judicial  Code. 

If  the  ease  comes  within  this  provision,  it  may  be  conceded  that 
the  limitation  as  to  the  amount  in  dispute  does  not  apply.  Does 
the  case  come  within  this  statute?  What  are  the  civil  rights  here* 
protected? 

In  Holt  V.  Indiana  Manufacturing  Co.,  176  U.  S.  68,  72,  20  Sup. 
Ct.  272,  273  (44  L.  Ed.  374)  the  Supreme  Court,  referring  to  the 
provision  of  the  statute  under  consideration,  which  was  then  the 
sixteenth  subdivision  of  section  629  of  the  Revised  Statutes  (U.  S. 
Comp.  St.  1901,  p.  506),  and  also  to  section  1979  of  the  Revised 
Statutes  (U.  S.  Comp.  St.  1901,  p.  1262),  said: 

"All  these  provisions  were  brought  forward  from  the  Act  of 
April  20,  1871,  entitled  'An  act  to  enforce  the  provisions  of  the 
Fourteenth  Amendment  to  the  Constitution  of  the  United  States, 
and  for  other  purposes.'  17  Stat.  13,  c.  22.  Assuming  that  they 
are  still  in  force,  it  is  sufficient  to  say  that  they  refer  to  civil  rights 
only,  and  are  inapplicable  here." 

That  case  was  brought  to  enjoin  the  collection  of  certain  personal 
taxes  based  upon  an  assessment  upon  the  value  of  certain  rights 
secured  under  letters  patent  of  the  United  States.  It  was  held  by 
the  Supreme  Court  that  the  Circuit  Court  did  not  have  jurisdic- 
tion of  the  case.  The  term  "civil  rights"  was  not  defined,  nor  was 
it  necessary.  The  civil  rights  which  it  is  the  purpose  of  this  stat- 
ute to  protect  are  only  those  rights,  privileges,  and  immunities 
secured  by  the  Constitution  of  the  United  States,  or  some  law  of 
the  United  States  passed  in  pursuance  of  constitutional  authority. 
Rights,  privileges,  and  immunities  not  derived  from  the  Federal 
Constitution,  or  secured  thereby,  are  left  exclusively  to  the  protec- 
tion of  the  States.  Slaughter  House  Cases,  16  WaU.  36,  71,  21  L. 
Ed.  394 ;  ITnited  States  v.  Cruikshank,  92  U.  S.  542,  550,  551,  23 


190  Cases  on  Federal  Procedure 

L.  Ed.  588 ;  Presser  v.  Illinois,  116  U.  S.  252,  266,  6  Sup.  Ct.  580, 
29  L.  Ed.  615 ;  Hodges  v.  United  States,  203  U.  S.  1,  27  Sup.  Ct. 
6,  51  L.  Ed.  65 ;  Logan  v.  United  States,  144  U.  S.  263,  293,  12  Sup. 
Ct.  617,  36  L.  Ed.  429. 

The  right  to  contract  for  and  retain  employment  in  a  given  occu- 
pation or  calling  is  not  a  right  secured  by  the  Constitution  of  the 
United  States,  nor  by  any  constitution.  It  is  primarily  a  natural 
right,  and  it  is  only  when  a  State  law  regulating  such  employment 
discriminates  arbitrarily  against  the  equal  right  of  some  class  of 
citizens  of  the  United  States,  or  some  class  of  persons  within  its 
jurisdiction,  as,  for  example,  on  account  of  race  or  color,  that  the 
civil  rights  of  such  persons  are  invaded,  and  the  protection  of  the 
Federal  Constitution  can  be  invoked  to  protect  the  individual  in 
his  employment  or  calling. 

The  complainants'  case  is  not  within  this  protection.  They  have 
not  been  deprived  of  any  of  the  equal  rights  of  citizens  or  persons. 
The  State  law  applies  to  all  persons  alike,  without  discrimination, 
whether  citizens  of  the  United  States  or  persons  within  its  juris- 
diction, and  it  is  plainly  a  regulation  enacted  under  the  police 
power  of  the  State,  having  for  its  purpose  the  safety  of  passengers 
on  the  railways  operating  within  the  State. 

In  the  late  case  of  Chicago,  R.  I.  &  Pac.  Ry.  Co.  v.  Arkansas, 
219  U.  S.  453,  31  Sup.  Ct.  275,  279  (55  L.  Ed.  290),  the  Supreme 
Court  had  before  it  what  is  known  as  the  "full  crew"  act  of  the 
State  of  Arkansas.  The  act  provides  for  the  equipment  of  freight 
trains  upon  substantially  the  same  general  principles  as  the  Ari- 
zona act  provides  for  the  equipment  of  passenger  trains.  The  rail- 
road in  that  case  raised  the  question  of  the  constitutionality  of  the 
act  on  the  ground  that  it  undertook  to  regulate  interstate  commerce. 
The  Attorney  General  of  the  State  defended  the  act  on  the  ground 
that  it  was  a  rightful  exercise  of  the  police  power  of  the  State. 
The  court,  in  .sustaining  the  constitutionality  of  the  act  as  within 
the  police  power  of  the  State,  held  that  it  was  not  too  much  to  say 
that  the  State  was  under  an  obligation  to  establish  such  regula- 
tions as  were  necessary  and  reasonable  for  the  safety  of  all  engaged 
in  business  or  domiciled  witliin  its  limits.    The  court  said  further: 

"Local  statutes  directed  to  .such  an  end  have  their  source  in  the 
power  of  the  State,  never  surrendered,  of  caring  for  the  public 
safety  of  all  within  its  jurisdiction;  and  the  validity  under  the 
(constitution  of  the  United  States  of  such  statutes  is  not  to  be 
rpicstioned  in  a  Federal  ('onrt,  unless  tlicy  aio  clearly  inconsistent 
with  some  jiower  gr;mted  to  the  general  govei'nment,  or  with  some 


District  Courts  19] 

right  secured  by  that  instrument,  or  unless  they  are  purely  arbi- 
trary in  their  nature." 

Under  the  authority  of  this  ease,  it  must  be  held  that  the  Arizona 
statute  is  the  rightful  exercise  of  the  police  power  of  the  State, 
and  that  this  court  has  no  jurisdiction  of  the  ease. 

The  temporary  restraining  order  is  therefore  discharged,  the 
motion  for  a  temporary  injunction  denied,  and  the  bill  dismissed.* 


JOHNSON  V.  JUMEL. 

Circuit  Court,  D.  Louisiana.     J 877. 

13  Fed.  Cas.  No.  7,392,  p.  755,  3  Woods  69. 

Billings,  District  Judge. — The  substance  of  the  petition  is,  that 
the  petitioner  was  a  candidate  for  the  office  of  auditor  of  public 
accounts  of  the  State  of  Louisiana  at  the  election  held  on  the  7th 
of  November,  1876 ;  that  voters  in  various  parishes  who  were  en- 
titled to  vote  were  denied  the  right  to  vote  at  said  election  on 
account  of  race,  color  or  previous  condition  of  servitude,  to  the 
number  of  10,000;  that  the  officers  known  as  the  returning  board 
were  by  law  vested  with  complete  jurisdiction  to  correct  the  errors 
and  wrongs  which  had  then  arisen  in  these  various  parishes,  and 
that  they  did  make  such  corrections  and  returned  the  petitioner 
elected  to  said  office ;  that  he  was  duly  commissioned  and  entered 
upon  and  enjoyed  the  possession  of  said  office  for  the  period  of 
four  months,  when  he  was  forcibly  ejected  bj^  a  government  estab- 
lished by  domestic  violence,  insurrection  and  revolution ;  that  the 
claim  or  pretense  upon  which  they  have  ousted  him  from  his 
office  is  that  the  petitioner  was  not  elected,  and  that  the  votes 
which  were  cast  in  the  parishes  in  which  the  right  to  vote  was 
denied  should  be  counted  against  him.  According  to  the  allega- 
tions of  this  petition,  petitioner  has  not  been  defeated  or  deprived 
of  any  election ;  but,  on  the  contrary,  was  elected  and  was  declared 
elected  by  the  competent  State  authority,  and  was  duly  commis- 
sioned, and  retained  his  office  for  the  period  of  four  months.  True, 
there  had  been  an  unsuccessful  attempt  to  defeat  petitioner  by  an 
exclusion  of  votes  in  the  various  parishes,  but  he  avers  that  that 

1  Only  a  portion  of  the  opinion  is  reprinted. 

See  also  Browner  v.  Irvin,  169  Fed.  964   (1909). — Ed. 


192  Cases  on  Federal  Procedure 

attempt  had  been  completely  thwarted  by  the  tribunal  which  had 
the  final  revision  of  the  returns.  Every  vote  that  was  cast,  or  was 
attempted  to  be  cast,  for  the  petitioner  and  against  the  defendant 
had,  according  to  his  allegations,  full  effect  given  to  it,  and  was 
finally  and  effectively  counted  by  the  board  of  returning  officers. 
He  has  thus,  so  far  from  having  been  defeated,  succeeded  in  an 
election,  and  instead  of  having  been  deprived  of  an  election,  has 
secured  an  election,  and  four  months  after  the  election  has  been 
deprived,  not  of  an  election,  but  of  an  office,  to  which  he  has  been 
elected  and  authoritatively  declared  elected;  and  he  has  been  de- 
prived of  an  office,  not  by  the  exclusion  of  votes  for  any  reason, 
but  by  force,  which  took  the  proportions  of  a  revolution.  The 
statute  under  which  jurisdiction  is  given  to  the  Circuit  Court  is 
set  forth  in  the  Act  of  May  31,  1870,  §  23  (16  Stat.  146;  Rev.  St. 
§  2010),  as  follows:  "That  whenever  any  person  shall  be  defeated 
or  deprived  of  his  election  to  any  office,  except  elector  of  president 
or  vice-president,  representative  or  delegate  in  Congress,  or  mem- 
ber of  a  State  legislature,  by  reason  of  the  denial  to  any  citizen 
or  citizens,  who  shall  offer  to  vote,  of  the  right  to  vote,  on  account 
of  race,  color  or  previous  condition  of  servitude,  his  right  to  hold 
and  enjoy  such  office  and  the  emoluments  thereof  shall  not  be  im- 
paired by  such  denial,  and  such  person  may  bring  any  appropriate 
suit  or  proceeding  to  recover  possession  of  such  office,  and  in  cases 
where  it  shall  appear  that  the  sole  question  toucliing  the  title  to 
such  office  arises  out  of  the  denial  of  the  right  to  vote  to  citizens 
who  so  offered  to  vote  on  account  of  race,  color  or  previous  condi- 
tion of  servitude,  such  suit  or  proceeding  may  be  instituted  in  the 
Circuit  or  District  Court  of  the  United  States  of  the  circuit  or 
district  in  which  such  person  resides," 

From  this  it  appears  that  the  cases  in  which  the  Circuit  courts 
have  jurisdiction  of  such  actions  as  this  are  limited  to  those  in 
which  it  shall  appear  that  the  sole  question  touching  the  title  to 
such  office  arises  out  of  the  denial  of  the  right  to  vote,  to  citizens 
who  so  offered  to  vote,  on  account  of  race,  color  or  previous  con- 
dition of  serviiude,  and  that  the  jurisdiction  of  the  Circuit  Court 
is  only  given  to  the  extent  of  detei-niining  the  rights  of  the  parties 
to  siicii  office,  by  reason  of  the  denial  of  the  right  guaranteed  by 
1h(!  flit et'ii til  article  of  Amendment  to  the  Constitution  of  the 
IJnifed  States. 

There  is  no  doubt  I  hat  the  seo[)e  of  this  statute,  under  the  limita- 
tions wliicji  it  conliiins,  extends  from  the  first  act  required  to  be 
•  lone  in  Ijie  in:itt<'r  of  an  elcetioii  down  to  and  includin'^  the  final 


District  Courts  193 

and  effective  canvass  of  the  votes  by  the  officers  who  are  charged 
with  the  duty  of  determining  and  certifying  the  result.  If,  in  any 
of  the  stages  of  an  election,  in  registration,  in  the  receipt  of  votes, 
the  certificates  of  the  votes  by  the  local  authorities,  or  the  final 
canvass  of  the  votes  or  the  certificate  of  election  by  the  returning 
board,  there  had  been  such  a  denial  of  the  right  to  vote  as  the  stat- 
ute contemplates,  on  account  of  race,  color  or  previous  condition 
of  servitude,  that  matter  this  court  would  have  had,  under  the 
act  of  Congress,  jurisdiction  to  inquire  into  and  adjudicate  upon, 
and  it  could  determine  the  rights  of  the  parties  to  office,  so  far  as 
they  depended  upon  the  denial  of  the  right  guaranteed  by  the 
fifteenth  article  of  the  Amendment  to  the  Constitution.  But  the 
jurisdiction  of  the  court  begins  and  ends  with  the  denial  of  the 
right  to  vote. 

If,  therefore,  there  is  a  preliminary  exclusion  or  an  exclusion 
at  the  polls,  and  that  error  is  corrected  by  the  proper  State  author- 
ities and  there  is  no  final  and  effective  exclusion  of  votes  or  dis- 
crimination, or  if  after  an  election  has  been  held  and  the  result 
reached  and  declared  without  discrimination  or  exclusion  from 
any  cause,  the  person  elected  is  deprived  of  his  office,  then  the 
statute  closes  the  doorway  upon  the  jurisdiction  of  this  court.  The 
defeat  of  a  candidate  at  an  election  or  his  deprivation  of  an  elec- 
tion, must  be  accomplished  by  the  machinery  of  the  election,  in 
one  of  its  stages,  and  must  be  contained  in  the  result.  If  the  elec- 
tion terminates  in  the  success  of  the  candidate,  the  essential  ground 
of  jurisdiction  on  the  part  of  this  court  is  wanting.  The  wrong 
which  the  petitioner  sets  forth  is,  that  after  being  elected  and 
installed,  he  has  not  been  retained  in  the  office.  The  object  of  the 
statute  was  to  secure  an  election  free  from  all  possible  exclusion 
on  any  of  the  specific  grounds.  It  secured  this  object  by  giving 
to  this  court  jurisdiction  to  correct,  through  this  form  of  action, 
such  exclusion  effected  by  the  machinery  or  practices  attending 
the  election.  When,  as  the  petitioner  alleges,  all  this  has  been 
accomplished,  and  the  very  result  aimed  at  by  the  statute  has  been 
worked  out  and  declared,  the  statute  gives  no  jurisdiction  over  a 
cause  merely  to  enable  a  party  to  physically  retain  or  regain  an 
office  to  which  he  had  a  title  established  by  an  election,  and  from 
which  he  has  subsequently  been  ejected.  In  this  case  the  question 
by  virtue  of  which  the  court  could  take  jurisdiction,  and  by  the 
terms  of  the  statute  it  must  be  unmixed  with  any  other  question, 
is  not  presented.  According  to  the  allegations  of  the  petition,  the 
election  had  been  completed  for  four  months  when  the  ouster  took 

Wheaton  C.  F.  P.— 13 


194  Cases  on  Federal.  Procedure 

place,  and  his  loss  of  office  is  as  independent  of  any  denial  of  the 
right  to  vote  as  if  he  had  been  ejected  by  a  government  set  up  by 
a  foreign  invasion,  claiming  authority  by  the  right  of  conquest. 
Let  the  demurrer  be  sustained  and  the  petition  dismissed.^ 


FROMENT  V.  DUCLOS. 

District  Court,  S.  D.  New  York.     1887. 

30  Fed.  385. 

Brown,  J. — On  the  twentj^-third  of  March  last,  suit  was  com- 
menced in  this  court  to  recover  the  value  of  a  bill  of  goods  sold  by 
the  plaintiff  in  October,  1883,  to  the  defendants ;  and  on  the  same 
day  an  attachment  was  issued,  pursuant  to  the  State  practice, 
against  the  property  of  the  defendant  Duclos,  a  resident  of  the 
State  of  New  Jersey.  The  complaint  and  affidavit  stated  that  the 
defendant  Fritsch  is  the  Austrian  vice-consul  at  this  port.  The 
defendant  Duclos  now  appears  for  the  purpose  only  of  vacating 
the  attachment,  on  the  ground  that  this  court  has  no  jurisdiction 
of  an  action  against  the  consul  and  another  defendant,  but  only 
in  an  action  against  the  consul  alone. 

The  seventeenth  paragraph  of  section  563  of  the  Revised  Stat- 
utes of  the  United  States  gives  this  court  jurisdiction  of  "all  suits 
against  consuls  or  vice-consuls,  except  for  offenses  above  the  de- 
scription aforesaid."  The  exception  does  not  affect  this  case.  The 
cases  cited  by  the  defendant  to  show  that  each  of  the  defendants 
must  be  amenable  to  the  jurisdiction  of  the  Federal  courts  are  all 
cases  relating  to  suits  "between  citizens  of  different  States,"  in 
which  the  language  of  the  statute  is  quite  different.  See  Rev.  St. 
§  629 ;  Strawbridge  v.  Curtiss,  3  Cranch  267 ;  Coal  Co.  v.  Blatch- 
ford,  11  Wall.  172.  In  those  cases  the  jurisdiction  of  the  Federal 
courts  was  never  exclusive  of  the  jurisdiction  of  the  State  courts. 
But  the  jurisdiction  of  the  Federal  courts  over  consuls  and  vice- 
consuls  lias  always  been  exclusive  of  the  State  courts  from  the 
passage  of  the  Judiciary  Act  of  1789  (1  St.  at  Large  76)  until  the 
Act  of  February  18,  1875  (13  St.  at  Large  318;  Rev.  St.  U.  S. 
§  711).  See  Bors  v.  Preston,  111  U.  S.  252,  261,  4  Sup.  Ct.  Rep. 
407. 

1  Tho    ripininn    only    is    n'printod. — Ed. 


District  Courts  195 

Whatever  may  be  the  effect  of  the  repeal  of  the  exclusive  juris- 
diction of  the  Federal  courts  as  respects  consuls  by  the  act  last 
mentioned,  that  act  cannot  be  construed  as  intended  to  diminish 
the  jurisdiction  of  the  United  States  District  courts  in  actions 
affecting  consuls  as  it  existed  before.  There  is  no  evidence  of  any 
sufih  purpose,  and  it  is  not  to  be  inferred.  If  such  a  suit  as  this 
was  maintainable  before  the  Act  of  February  18,  1875,  it  must 
therefore  be  held  to  be  maintainable  still.  Looking  at  the  question 
from  this  point  of  view,  it  would  seem  clear  that  the  jurisdiction 
of  this  court  in  such  a  case  as  this  should  be  maintained,  whether 
a  similar  suit  be  now  maintainable  in  the  State  courts  or  not. 

There  is  no  question  that  such  a  joint  action  as  this  is  within 
the  constitutional  grant  of  the  Federal  power,  since  the  Constitu- 
tion expressly  declares  that  this  power  "shall  extend  *  *  * 
to  all  eases  affecting  ambassadors,  other  public  ministers,  and  con- 
suls." This  action  is  just  as  clearly  also  a  "suit  against  a  consul 
or  vice-consul,"  and  hence  within  the  very  language  of  the  act  of 
Congress  (Rev.  St.  §563),  although  a  necessary  co-defendant  is 
joined.  In  the  case  of  Davis  v.  Packard,  7  Pet.  276,  284,  the  Su- 
preme Court,  in  referring  to  the  privilege  of  a  suit  in  the  Federal 
tribunals,  says  that  "the  privilege  is  not  a  personal  one,"  but  is 
"the  privilege  of  the  country  or  Government  which  the  consul 
represents.  *  *  *  It  was  deemed  fit  and  proper  that  the  courts 
of  the  Government  with  which  rested  the  regulation  of  all  foreign 
intercourse  should  have  cognizance  of  suits  against  representatives 
of  such  foreign  Governments."  These  reasons  are  as  applicable  to 
a  joint  action,  including  a  consul  defendant,  as  to  an  action  against 
a  consul  sole  defendant. 

As  the  law  stood  until  1875,  the  jurisdiction  of  the  Federal 
courts  being  expressly  declared  to  be  exclusive  of  the  State  courts, 
if  suit  upon  a  joint  obligation  could  not  be  brought  in  this  court 
against  both  defendants,  the  obligation  could  not  have  been  en- 
forced anywhere.  In  a  State  court  the  action  against  both  could 
not  lie,  because  suit  against  the  consul  there  was  forbidden ;  and, 
if  the  suit  w^ere  brought  there  against  the  other  defendant  alone, 
the  latter  could  successfully  have  pleaded  the  non- joinder  of  the 
consul  as  defendant ;  while  in  the  Federal  court  the  consul  could 
not  have  been  sued  alone,  since  he  would  be  equall}^  entitled  to 
plead  the  non-joinder  of  the  other  defendant.  Barney  v.  Balti- 
more City,  6  Wall.  280,  286.  The  Act  of  February  28,  1839  (5 
St.  at  Large  321,  §1;  Rev.  St.  U.  S.  §737),  does  not  apply  in 
regard  to  persons  who  are  inhabitants  of  the  district,  or  are  found 


196  Cases  on  Federal,  Procedure 

therein,  and  that  statute,  therefore,  would  not  extend  to  this  case. 
It  certainly  was  not  the  design  of  the  judiciary  act  in  giving  ex- 
clusive jurisdiction  to  the  District  courts  in  suits  against  consuls, 
to  debar  suitors  of  all  legal  redress  upon  contracts  in  which  a 
consul  was  a  joint  obligor.  The  necessary  alternative  is  that  suits 
against  both  jointly  must  have  lain  either  in  the  Federal  court,  or 
else  in  the  State  court ;  and,  as  the  general  language  of  the  statute 
excluded  State  courts,  the  reasonable  construction  of  the  phrase 
"all  suits  against  consuls  or  vice-consuls"  must  be  to  apply  it,  in 
its  general  and  extended  sense,  to  all  suits  in  which  consuls  or  vice- 
consuls  were  necessary  parties  defendant. 

In  the  case  of  Bixby  v.  Janssen,  6  Blatchf.  315,  an  action  similar 
to  this  was  brought  and  determined  upon  the  merits ;  and,  though 
the  complaint  was  there  dismissed  as  against  third  persons  on  the 
ground  that  the  joint  liability  of  the  consul  was  disproved,  the 
clear  inference  from  the  decision  is  that  otherwise  the  suit  would 
have  been  sustained. 

The  motion  to  vacate  should  be  denied.^ 


POOLEY  V.  LUCO. 

District  Court,  S.  D.  California.    1896. 
76  Fed.  146. 

This  was  a  foreclosure  suit  brought  by  0.  Pooley  against  Juan 
M.  Luco  and  others.  The  cause  was  heard  on  demurrer  to  the  bill 
for  want  of  jurisdiction. 

Wellborn,  District  Judge. — This  is  a  suit  to  foreclose  a  mort- 
gage on  lands  situated  in  San  Diego  county,  Southern  district  of 
California.  One  of  the  defendants,  Juan  M.  Luco,  is  consul  gen- 
eral of  the  republic  of  Chile,  duly  accredited  to  the  Government 
of  the  United  States,  and  resident  at  San  Francisco,  Cal.  Said 
defendant  by  demurrer,  challenges  the  jurisdiction  of  the  court, 
and,  in  his  brief,  urges  two  grounds: 

1.  That  so  much  of  section  687  of  the  Revised  Statutes  of  the 
United  States  as  provides  that  the  jurisdiction  of  the  Supreme 
Court,  in  suits  to  wliich  a  consul  is  a  party,  shall  not  be  exclusive, 

1  Compare  Bixby  v.  Janssen,  .3  Fed.  Caa.  No.  1,453,  p.  488,  6  Blatchford, 
315    (1869). 


District  Courts  197 

is  in  violation  of  the  first  clause  of  the  second  paragraph  of  section 
2,  art.  3,  of  the  Constitution  of  the  United  States,  said  paragraph 
being  as  follows: 

"In  all  cases  affecting  ambassadors,  other  public  ministers,  and 
consuls,  and  those  in  which  a  State  shall  be  a  party,  the  Supreme 
Court  shall  have  original  jurisdiction.  In  all  other  cases  before 
mentioned  the  Supreme  Court  shall  have  appellate  jurisdiction, 
both  as  to  law  and  fact,  with  such  exceptions  and  under  such  regu- 
lations as  the  Congress  shall  make." 

Defendant's  argument  is  that  the  word  "original,"  in  this 
paragraph,  is  synonymous  with  "exclusive,"  and  therefore  Con- 
gress has  no  power  to  confer  upon  any  other  than  the  Supreme 
Court  jurisdiction  over  a  suit  to  which  a  consul  is  a  party.  This 
argument,  while  not  so  expressed  in  defendant's  brief,  also  ap- 
plies, of  course,  to  subdivision  17  of  section  563  of  the  Revised 
Statutes  of  the  United  States,  which  subdivision  provides  that  the 
District  courts  shall  have  jurisdiction,  with  an  exception  not  ma- 
terial here,  "of  all  suits  against  consuls."  Said  subdivision,  and 
the  above-mentioned  provision  of  section  687,  are  in  my  opinion, 
constitutional.  The  significance  which  defendant  ascribes  to  the 
word  "original"  is  not  in  harmony  with  its  commonly  accepted 
meaning,  nor  is  it  warranted  by  the  context.  In  the  paragraph 
of  the  Constitution  above  quoted,  the  word  "original"  is  used 
solely  in  contra-distinction  to  the  word  "appellate,"  and  this  use 
indicates  that  the  former  of  said  words  was  not  intended  to  make 
exclusive  the  jurisdiction  which  it  otherwise  qualifies.^ 


In  Schunior  v.  Russell,  83  Texas  83,  18  S.  W.  484  (1892),  the 
court  said,  "A  'consul'  is  defined  to  be  'a  commercial  agent  of  a 
country  residing  in  a  foreign  seaport,  whose  duty  it  is  to  support 
commercial  intercourse  sf  the  State,  and  especially  of  the  indi- 
vidual citizens. '    3  Amer?  &  Eng.  Enc.  Law  764. ' ' 


In  Reid  Wrecking  Co.  v.  United  States,  202  Fed.  314  (1913), 
Day,  District  Judge,  said: 

'  *  The  United  States  cannot  be  sued  in  their  courts  without  their 
consent.  In  granting  such  consent  Congress  has  an  absolute  dis- 
cretion to  specify  the  cases  and  contingencies  in  which  the  liability 
of  the  Government  is  submitted  to  the  courts  for  their  judicial 

1  Only  a  portion  of  the  opinion  is  reprinted. — Ed. 


198  Cases  on  Federal  Procedure 

determination,  and  the  courts  may  not  go  beyond  the  letter  of  such 
consent.  In  Schillinger  v.  United  States,  155  U,  S.  163,  166,  15 
Sup.  Ct.  85,  86  (39  L.  Ed.  108),  Justice  Brewer,  in  announcing 
the  opinion  of  the  court,  said : 

"  'Beyond  the  letter  of  such  consent  the  courts  may  not  go,  no 
matter  how  beneficial  they  may  be,  or  in  fact  might  be  their  pos- 
session of  a  larger  jurisdiction  over  the  liabilities  of  the  Govern- 
ment. ' 

''The  Supreme  Court,  in  Reid  v.  United  States,  211  U.  S.  529,  29 
Sup.  Ct.  171,  53  L.  Ed.  313,  said: 

' '  '  Suits  against  the  United  States  can  be  maintained,  of  course, 
only  by  permission  of  the  United  States  and  in  the  manner  and 
subject  to  the  restrictions  that  it  may  see  fit  to  impose.' 

"  It  is  evident  from  the  holdings  in  these  cases  that  the  permission 
to  bring  suit  against  the  United  States  as  a  sovereign  power  must 
be  granted  by  Congress,  and  that  the  courts  cannot  enlarge  upon 
the  permission  which  has  been  granted  by  legislative  authority. 
This  being  the  law,  the  responsibility  rests  upon  Congress,  and  the 
law  as  announced  by  Congress  must  be  followed,  regardless  of  the 
opinion  of  this  court  regarding  its  wisdom  or  its  efficiency  to  meet 
certain  conditions. ' '  ^ 


HILL  V.  UNITED  STATES. 

Circuit  Court,  D.  Massachusetts. ,  1S89, 

40  Fed.  441. 

Nelson,  J. — This  is  a  suit  to  recover  of  the  United  States  fees 
earned  by  the  plaintiff  as  clerk  of  the  District  Court  of  the  United 
States  for  the  District  of  Massachusetts.  (The  facts  showed  that 
the  amount  due  the  plaintiff  was  over  $10,000.  He  asked  judg- 
ment for  only  $10,000). «     *     *     * 

Tlie  defendant  excepted  to  the  jurisdiction  of  the  court  upon 
the  ground  that  the  plaintiff's  claim  exceeded  $10,000,  within  the 

1  Tlip  court,  in  dctonriininp  •nhcthor  or  not  the  Unitod  Rtnto?  is  })o'mg  sued, 
will  look  to  tho  real  j)artv  in  interest.  NaKmiali  v.  Hitchcoek,  202  U.  S. 
47.''.,  26  S.   Ct.   667,   TjO   I>.   Ed.   lll.'J.— Ed. 

2  The  farts  are  reatatod,  and  only  a  i)ortioii  ol'  the  (ii)iiiion  is  reprinted. — 
Ed. 


District  Courts  199 

meaning  of  the  Act  of  March  3,  1887.  (24  St.  505.)  But,  as  the 
plaintiff  in  his  petition  limited  his  claim  to  $10,000,  and  expressly 
waived  all  right  to  recover  a  larger  sum,  the  court  overruled  the 
exception,  and  decided  that  it  had  jurisdiction  to  hear  and  deter- 
mine the  case. 


CARPENTER  v.  UNITED  STATES. 

Circuit  Court,  S.  D.  Ohio,  W.  D.     1891. 

45  Fed.  341. 

At  Law. 

Act.  Cong.  March  3,  1887,  e.  359,  §  1,  provides  that  the  Court 
of  Claims  shall  have  jurisdiction  to  hear  and  determine  all  claims 
founded  upon  "any  contract,  express  or  implied,  Mith  the  United 
States,  or  for  damages,  liquidated  or  unliquidated,  in  cases  not 
sounding  in  tort,  in  respect  of  which  claims  the  party  would  be 
entitled  lo  redress  against  the  United  States  either  in  a  court  of 
law,  equity,  or  admiralty,  if  the  United  States  were  suable." 

Sage,  J. — After  the  ruling  in  this  case  (reported  42  Fed.  Rep. 
264),  upon  the  suggestion  of  counsel  for  the  plaintiff  that  the  facts 
were  imperfectly  stated  in  the  petition,  the  demurrer  to  which  had 
been  sustained,  and  that  properly  stated  they  would  sustain  a  claim 
for  indemnification  by  the  Government,  I  permitted  an  amended 
petition  to  be  filed,  to  which  the  Government  answered,  joining 
issue  on  the  points  hereinafter  referred  to.  The  cause  is  now  be- 
fore the  court  upon  the  pleadings  and  testimony  submitted  by  the 
parties. 

The  first  point  made  for  the  plaintiff  is  that  the  hiring  of  the 
flat  by  Mr,  Carpenter  for  the  use  of  the  Government  was  legally 
authorized.  The  testimony  does  not  establish  that  the  flat  was 
hired.  It  had  been  in  possession  of  the  plaintiff  with  the  consent 
of  Mr.  Wolf,  the  owner,  for  another  purpose.  That  purpose  hav- 
ing been  accomplished,  the  plaintiff,  upon  the  order  of  Lieut. 
Mahan,  took  possession  of  it,  and  used  it  in  the  work  of  removing  a 
wreck  from  the  channel  of  the  Ohio  river,  at  a  point  a  short  dis- 
tance below  Pittsburgh.  The  plaintiff  was  then  in  the  employ- 
ment of  the  Government,  under  the  orders  of  Lieut.  Mahan,  who 


200  Cases  on  Federal  Procedure 

was  subordinate  to  Col.  Merrill.  Col.  Merrill  had  directed  Lieut. 
Mahan  to  remove  the  wreck  in  question,  which  was  an  obstruction 
to  navigation,  and  the  plaintiff  was  assisting  in  that  work.  This 
was  in  the  spring  of  1873. 

The  next  point  for  the  plaintiff  is  that  the  hiring  of  the  flat 
was  reasonably  necessary ;  and  the  third,  that,  the  plaintiff  having 
acquired  possession  of  it  on  behalf  of  the  Government,  the  Govern- 
ment became  bound  for  its  surrender,  and  for  the  performance  of 
plaintiff's  contract  in  its  behalf  with  Wolf,  the  owner  of  the  flat; 
that  is,  to  take  good  care  of  it,  to  deliver  it  at  the  point  agreed 
upon  on  the  Oliio  river,  and  to  pay  Wolf  for  its  use.  Counsel  urge 
that  it  was  not  the  plaintiff's  affair,  but  the  Government's;  and, 
if  the  Government  was  in  any  respect  in  default,  it  was  responsible 
to  the  owner  for  damages  under  the  contract  implied  by  the  taking 
possession  of  and  using  the  flat ;  also  that,  inasmuch  as  plaintiff 
was  sued  and  compelled  to  pay  damages  by  reason  of  his  connec- 
tion with  the  transaction  as  an  agent  of  the  Government,"  the  Gov- 
ernment must  indemnify  him. 

The  fatal  objection  to  the  plaintiff's  claim  is  that  he  sues  for 
indemnification,  and  presents  as  his  evidence  the  record  of  the 
suit  brought  against  him  in  the  State  Court  at  Pittsburgh.  He 
seeks  to  recover  the  amount  of  the  judgment  therein  rendered 
against  him,  with  his  expenses  incurred  in  his  defense.  The  Stat- 
ute of  Limitations  would  bar  a  recovery  upon  any  other  ground. 
But  that  suit  was  an  action  sounding  in  tort.  It  was  begun  on  the 
3d  day  of  May,  1873,  in  the  District  Court  of  Alleghany  County. 
A  capias,  styled  in  trover,  was  issued  against  the  plaintiff  and  his 
co-defendants.  It  was  followed  by  a  declaration  in  "trespass  on 
the  case,"  as  it  is  termed  in  the  pleadings.  The  declaration,  how- 
ever, alleged  the  conversion  of  the  flat  by  the  defendants  to  their 
own  use,  and  demanded  damages  therefor.  The  case  proceeded 
to  judgment  for  the  sura  of  $874.78,  with  costs.  On  the  9th  of 
October,  1885,  nothing  having  been  paid  upon  the  judgment,  the 
plaintiff  was  arrested,  and  imprisoned  for  28  days ;  and  on  the  6th 
of  May,  1886,  having  given  bond  for  his  release  from  imprison- 
ment, he  paid  the  amount  of  the  judgment,  and  the  costs  thereon, 
in  all  $1,574.47,  of  which  $26.80  were  the  costs.  He  also  sets  up 
that  he  has  expended  in  attorney  fees,  and  in  the  payment  of 
expenses  in  his  defense,  $156.88;  whereas  he  prays  judgment 
against  the  Government  for  the  sum  of  $1,731.74,  with  interest 
from  May  6,  1886. 

In  U.  S.  V.  Manufacturing.'   Co.,  112  TJ.  S.  645,  5  Sup.  Ct.  Rep. 


District  Courts  201 

306,  which  is  cited  for  the  plaintiff,  it  appeared  that  certain  prop- 
erty, to  which  the  United  States  asserted  no  title,  was  taken  by  its 
ofiScers  or  agents,  pursuant  to  an  act  of  Congress,  as  private  prop- 
erty for  the  public  use,  and  it  was  held  that  the  Government  was 
under  an  implied  obligation  to  make  just  compensation  to  the 
owner.  In  that  case  there  had  been  no  formal  proceedings  for  the 
condemnation  of  the  property  to  public  use,  but  the  owner  waived 
any  objection  that  he  might  have  been  entitled  to  make,  based 
upon  the  want  of  such  proceedings,  and  elected  to  regard  the  ac- 
tion of  the  Government  as  a  taking  under  its  sovereign  right  of 
eminent  domain,  and  therefore  demanded  compensation  for  the 
property.  The  Supreme  Court  held  that  the  United  States,  having 
by  its  agent,  proceeding  under  the  authority  of  a  special  act  of 
Congress,  taken  the  property  of  the  claimant  for  public  use,  were 
under  an  obligation  imposed  by  the  Constitution  to  make  compen- 
sation.    The  court  said: 

"The  law  will  imply  a  promise  to  make  the  required  compensa- 
tion where  property,  to  which  the  Government  asserts  no  title,  is 
taken,  pursuant  to  an  act  of  Congress,  as  private  property  to  be 
applied  for  public  uses.  Such  an  implication  being  consistent  with 
the  constitutional  duty  of  the  Government,  as  well  as  with  common 
justice,  the  claimant's  cause  of  action  is  one  that  arises  out  of 
implied  contract,  within  the  meaning  of  the  statute  which  confers 
jurisdiction  upon  the  Court  of  Claims  of  actions  founded  'upon 
any  contract,  express  or  implied,  with  the  Government  of  the  United 
States.'" 

The  court  further  said: 

"If  the  claimant  makes  no  objection  to  the  particular  mode  in 
which  the  property  has  been  taken,  but  substantially  waives  it, 
by  asserting,  as  is  done  in  the  petition  in  this  case,  that  the  Gov- 
ernment took  the  property  for  the  public  uses  designated,  we  do 
not  perceive  that  the  court  is  under  any  duty  to  make  the  ob- 
jection in  order  to  relieve  the  United  States  from  the  obligation 
to  make  just  compensation." 

The  radical  difference  between  that  case  and  the  case  now  be- 
fore the  court  is  that  there  the  plaintiff  waived  the  tort,  and 
based  his  claim  upon  the  implied  obligation  of  the  Government, 
by  reason  of  the  provisions  of  the  statute,  to  make  compensation 
for  the  property.  But  here  there  is  on  the  one  hand  no  showing 
whatever  of  any  contract  with  Wolf,  the  owner  of  the  flat,  under 
which  possession  was  taken,  for  the  contrary  appears  upon  the 
face  of  the  petition ;  and,  on  the  other  hand,  there  was  no  waiver 


202  Cases  on  Federal  Procedure 

'« 
by  Wolf  of  the  tortious  taking,  but  he  prosecuted  his  claim  for 
damages  by  reason  of  that  taking. 

In  Langford  v.  U.  S.,  101  U.  S.  341,  the  Supreme  Court  held 
that  the  court  of  claims  has  jurisdiction  only  in  cases  ex  con- 
tractu, and  that  an  implied  contract  to  pay  does  not  arise  where 
the  officer  of  the  Government,  asserting  its  ownership,  commits 
a  tort  by  taking  forcible  possession  of  the  lands  of  an  individual 
for  public  use.  The  court  say  that  in  such  a  case  the  Government 
or  the  officers  who  seize  such  property  are  guilty  of  a  tort  if  it 
be  in  fact  private  property,  and  that  no  implied  contract  to  pay 
can  arise  any  more  than  in  the  case  of  such  a  transaction  between 
individuals.  With  reference  to  the  restriction  of  the  court  of 
claims  to  cases  of  contract,  the  court  say  that  the  reason  therefor 
is  that,  while  Congress  might  be  willing  to  subject  the  Govern- 
ment to  the  judicial  enforcement  of  contracts,  which  could  only  be 
valid  as  against  the  United  States  when  made  by  some  officer  of 
the  Government  acting  under  lawful  authority,  with  power  vested 
in  him  to  make  such  contracts,  or  to  do  acts  which  implied  them, 
the  very  essence  of  a  tort  is  that  it  is  an  unlawful  act,  done  in 
violation  of  the  legal  rights  of  some  one,  and  for  such  acts,  how- 
ever high  the  position  of  the  officer  or  agent  of  the  Government 
who  did  or  commanded  them,  Congress  did  not  intend  to  subject 
the  Government  to  the  results  of  a  suit  in  that  court.  Precisely 
the  restriction  referred  to  in  that  case  is  placed  upon  the  juris- 
diction of  this  court  by  the  act  of  jMarch  3,  1887,  under  which 
this  suit  is  brought. 

In  Gibbons  v.  U.  S.,  8  Wall.  269,  the  Supreme  Court  held  that 
the  Government  is  not  liable  on  an  implied  assumpsit  for  the  torts 
of  its  officer  committed  while  in  its  service,  and  apparently  for 
its  benefit.  The  court  said  that  it  was  not  to  be  disguised  that 
the  case  was  an  attempt,  under  the  assumption  of  an  implied  con- 
tract, to  make  the  Government  responsible  for  the  unauthorized 
acts  of  its  officers,  those  acts  being  in  themselves  torts,  and  that 
no  Government  has  ever  held  itself  liable  to  individuals  for  the 
misfeasance,  laches,  or  unauthorized  exercise  of  power  by  its  offi- 
cers or  agents.  Justice  Miller,  in  the  course  of  his  opinion,  says 
that  the  language  of  the  statutes  which  confer  jurisdiction  upon 
the  court  of  claims  excludes,  by  the  strongest  implication,  de- 
mands against  the  Government  founded  on  torts,  and  that  the 
general  principle  already  stated  as  applicable  to  all  Governments 
forbids,  on  a  policy  imposed  by  necessity,  that  they  should  hold 
liicmselves  liable  for  unauthorized  wrongs  inflicted  by  their  offi- 


District  Courts  203 

eers  ou  the  citizen,  though  occurring  while  engaged  in  the  dis- 
charge of  official  duties.  He  further  says  that  in  such  cases,  where 
it  is  proper  for  the  United  States  to  furnish  a  remedy,  Congress 
has  wisely  reserved  the  matter  for  its  own  determination,  and 
that  it  certainly  has  not  conferred  it  on  the  court  of  claims. 

These  authorities  control  the  case  now  before  the  court,  and  in 
accordance  with  them  the  judgment  will  be  for  the  Government, 
with  costs.^ 


UNITED  STATES  v.  McCRORY. 

Circuit  Covrf  of  Appeals,  FiftJt  Circuit.     1899. 

91  Fed.  295,  33  C.  C.  A.  515. 

Pardee,  Circuit  Judge. — This  is  a  suit  brought  in  the  District 
Court  for  the  Northern  District  of  Alabama,  by  the  defendant 
in  error,  James  T.  McCrory,  to  recover  compensation  from  the 
United  States  for  services  rendered  as  a  letter  carrier  for  time 
actually  employed  over  and  above  eight  hours  per  day.  On  the 
trial  there  was  judgment  against  the  United  States  for  the  sum 
of  $253.21,  the  full  amount  claimed,  and  the  United  States  sued 
out  this  writ  of  error.  Subsequent  to  the  rendition  of  the  judg- 
ment and  to  the  suing  out  of  the  writ  of  error,  the  following 
statute,  restrictive  of  the  jurisdiction  of  the  Circuit  and  District 
courts  in  suits  against  the  United  States,  was  passed: 

"Sec.  2.  That  section  two  of  the  act  aforesaid,  approved  March 
third,  eighteen  hundred  and  eighty-seven,  be,  and  the  same  is 
hereby,  amended  by  adding  thereto  to  the  end  thereof  the  follow- 
ing: 'The  jurisdiction  hereby  conferred  upon  the  said  Circuit 
and  District  courts  shall  not  extend  to  cases  brought  to  recover 
fees,  salary  or  compensation  for  official  services  of  officers  of  the 
United  States  or  brought  for  such  purpose  by  persons  claiming 
as  such  officers  or  as  assignees  or  legal  representatives  thereof.'  " 
30  Stat.  495. 

This  statute  having  been  brought  to  our  attention,  two  ques- 
tions are  presented:  (1)  Does  the  act  quoted  take  away  the  ju- 
risdiction of  the  Circuit  and  District  courts  in  a  suit  brought  by 
a  letter  carrier  against  the  United  States  to  recover  compensa- 

1  Compare  Narciso  Basso  v.  The  United  States,  40  Ct.  CI.  202,  215  (1905). 
See  also  section  146  of  the  Judicial  Code. — Ed. 


204  Cases  on  Federal  Procedure 

tiou  for  services  rendered?     (2)  What  is  the  effect  of  the  act  in 
this  court  quoad  the  writ  of  error  in  this  case? 

It  is  argued  that  letter  carriers  are  not  officers  of  the  United 
States,  within  the  meaning  of  the  statute  in  question,  hut  are 
mere  employes,  not  intended  to  be  included  in  the  statute.  Letter 
carriers  are  appointed  by  the  postmaster  general  under  authority 
of  the  acts  of  Congress,  practically  during  good  behavior.  They 
are  sworn  and  give  bond  for  the  faithful  performance  of  their 
duties.  They  are  paid  from  moneys  appropriated  for  the  pur- 
pose by  Congress,  and  their  salaries  are  fixed  by  law.  They  have 
regularly  prescribed  services  to  perform,  and  their  duties  are  con- 
tinuing and  permanent,  not  occasional  or  temporary.  In  U.  S.  v. 
Hartwell,  6  Wall,  385,  393,  the  Supreme  Court  declared  that 
"an  'office'  is  a  public  station  or  employment  conferred  by  the 
appointment  of  Government.  The  term  embraces  the  ideas  of 
tenure,  duration,  emolument,  and  duties."  In  U.  S.  v.  Germaine, 
99  U.  S.  508 ;  Hall  v.  Wisconsin,  103  U.  S.  5,  8 ;  U.  S.  v.  Perkins, 
116  U.  S.  483,  6  Sup.  Ct.  449 ;  U.  S.  v.  Mouat,  124  U.  S.  303,  8 
Sup.  Ct.  505 ;  U.  S.  V.  Smith,  124  U.  S.  525,  8  Sup.  Ct.  595 ;  and 
in  Auffmordt  v.  Hedden,  137  U.  S.  310,  11  Sup.  Ct.  103;  U.  S. 
V.  Hartwell,  supra,  is  cited  with  approval.  An  examination  of 
these  cases,  all  bearing  on  the  question  in  hand,  will  show  that, 
in  the  opinion  of  the  Supreme  Court,  where  a  person  is  appointed 
under  authority  of  law  by  the  head  of  a  department,  and  his  duties 
are  continuing  and  permanent,  and  his  emolument  fixed,  such  a 
person  is  an  officer  of  the  United  States ;  and  that,  within  the 
constitutional  meaning  of  the  term.  Letter  carriers,  therefore, 
are  officers,  within  the  meaning  of  the  above-quoted  statute,  re- 
stricting the  jurisdiction  of  the  Circuit  and  District  courts  in 
regard  to  suits  brought  against  the  United  States  under  the  act 
of  1887.1 


NOTE. 

In  U.  S.  v.  Nipissing  Mines  Co.,  206  Fed.  431,  124  C.  C.  A.  313 
(1913),  it  was  licld  thai  the  Tucker  Act  of  1887,  which  contained 

1  Only  n  portion  of  the  caHC  is  reprinted. 

Compare  United  States  v.   Swift,   l.'O  Fed.  22.1,  227,  71   C.  C.  A.   851,  :!5;i 
(1905). 

See   also   wjetion  1  IG  of   the   .ludicial    (?ode. — Kd. 


District  Courts  205 

a  provision  similar  to  section  24,  subdivision  20  of  the  Judicial 
Code,  did  not  allow  an  affirmative  recovery  against  the  United 
States  on  a  counterclaim,  but  that  the  statute  referred  to  original 
suits  and  prescribed  procedure  inconsistent  with  its  use  as  the 
basis  of  counterclaim. 


SECTION  III. 

Removal  op  Causes. 

RAILWAY  COMPANY  v.  WHITTON. 

Supi'eme  Court  of  the  United  States.     1871. 
80  V.  S.  (13  Wallace)  270,  20  L.  Ed.  571. 

Error  to  the  Circuit  Court  for  the  Eastern  District  of  "Wisconsin. 

Henry  Whitton,  as  administrator  of  the  estate  of  his  wife  in 
Wisconsin,  under  letters  of  administration  granted  in  that  State, 
brought  suit  in  1866  in  one  of  the  State  courts  of  Wisconsin  to 
recover  damages  for  the  death  of  his  wife,  the  same  having  been 
caused,  as  he  alleged,  by  the  carelessness  and  culpable  misman- 
agement of  the  Chicago  and  Northwestern  Railway  Company. 

The  action  was  founded  on  a  statute  of  Wisconsin,  which  pro- 
vides that  "whenever  the  death  of  a  person  shall  be  caused  by 
a  wrongful  act,  neglect,  or  default,  and  the  act,  neglect,  or  de- 
fault is  such  as  would  (if  death  had  not  ensued)  have  entitled  the 
party  injured  to  maintain  an  action  and  recover  damages  in  re- 
spect thereof,  then,  and  in  every  such  case,  the  person  who,  or 
the  corporation  which,  would  have  been  liable,  if  death  had  not 
ensued,  shall  be  liable  to  an  action  for  damages,  notwithstanding 
the  death  of  the  person  injured;  provided,  that  such  action  shall 
be  brought  for  a  death  caused  in  this  State,  and,  in  some  court 
established  by  the  constitution  and  laws  of  the  same." 

There  was  a  removal  of  the  case  to  the  Federal  Circuit  Court. 
One  of  the  questions  involved  in  this  case  is  as  to  whether  or  not 
the  removal  was  proper.     *     *     *  i 

1  The  facts  are  restated,  and  only  a  portion  of  the  opinion  is  reprinted. — 
Ed. 


206  Cases  on  Federal  Procedure 

Mr.  Justice  Field,  having  stated  the  case,  delivered  the  opinion 
of  the  court  as  follows: 

The  jurisdiction  of  the  action  by  the  Federal  Court  is  denied 
on  three  grounds ;  the  character  of  the  parties  as  supposed  citi- 
zens of  the  same  State ;  the  limitation  to  the  State  court  of  the 
remedy  given  by  the  statute  of  Wisconsin;  and  the  alleged  in- 
validity of  the  act  of  Congress  of  March  2d,  1867,  under  which 
the  removal  from  the  State  court  was  made.     *     *     * 

Second;  as  to  the  limitation  to  the  State  court  of  the  remedy 
given  by  the  statute  of  Wisconsin.  That  statute,  after  declaring 
a  liability  by  a  person  or  a  corporation  to  an  action  for  damages 
when  death  ensues  from  a  wrongful  act,  neglect,  or  default  of 
such  person  or  corporation,  contains  a  proviso  "that  such  action 
shall  be  brought  for  a  death  caused  in  this  State,  and,  in  some 
court  established  by  the  Constitution  and  laws  of  the  same. ' '  This 
proviso  is  considered  by  the  counsel  of  the  defendant  as  in  the 
nature  of  a  condition,  upon  a  compliance  with  which  the  remedy 
given  by  the  statute  can  only  be  enforced. 

It  is  undoubtedly  true  that  the  right  of  action  exists  only  in 
virtue  of  the  statute,  and  only  in  cases  where  the  death  was  caused 
within  the  State.  The  liability  of  the  party,  whether  a  natural 
or  an  artificial  person,  extends  only  to  cases  where,  from  certain 
causes,  death  ensues  within  the  limits  of  the  State.  But  when 
death  does  thus  ensue  from  any  of  those  causes  the  relatives  of 
the  deceased  named  in  the  statute  can  maintain  an  action  for 
damages.  The  liability  within  the  conditions  specified  extends  to 
all  parties  through  whose  wrongful  acts,  neglect,  or  default  death 
ensues,  and  the  right  of  action  for  damages  occasioned  thereby 
is  possessed  by  all  persons  within  the  description  designated.  In 
all  cases,  where  a  general  right  is  thus  conferred,  it  can  be  en- 
forced in  any  Federal  Court  within  the  State  having  jurisdic- 
tion of  the  parties.  It  cannot  be  withdrawn  from  the  cognizance 
of  such  Federal  Court  by  any  provision  of  State  legislation  that 
it  shall  only  be  enforced  in  a  State  court.  The  statutes  of  nearly 
every  State  provide  for  the  institution  of  numerous  suits,  such 
as  for  partition,  foreclosure,  and  the  recovery  of  real  property 
in  particular  courts  and  in  the  counties  whore  the  land  is  situated, 
yet  it  never  has  been  pretended  that  limitations  of  this  character 
could  affect,  in  any  respect,  the  jurisdiction  of  the  Federal  Court 
over  such  suits  where  llio  citizenship  of  one  of  the  parties  was 
oiberwise  sufTicieiit.  Whenever  a  general  rule  as  to  property  or 
I)ersonal  rights,  or  injuries  to  either,  is  established  by  State  leg- 


District  Courts  207 

islation,  its  enforcement  by  a  Federal  Court  in  a  case  between 
proper  parties  is  a  matter  of  course,  and  the  jurisdiction  of  the 
court,  in  such  case,  is  not  subject  to  State  limitation. 

This  doctrine  has  been  asserted  in  several  cases  by  this  court. 
In  Suydam  v.  Broadnax,^  an  act  of  the  Legislature  of  Alabama 
provided  that  the  estate  of  a  deceased  person,  declared  to  be  in- 
solvent, should  be  distributed  by  the  executors  or  administrators 
according  to  the  provisions  of  the  act,  and  that  no  suit  or  action 
should  be  commenced  or  sustained  against  any  executor  or  ad- 
ministrator after  the  estate  had  been  declared  to  be  insolvent,  ex- 
cept in  certain  cases ;  but  this  court  held,  in  a  case  not  thus  ex- 
cepted, that  the  insolvency  of  the  estate,  judicially  declared  under 
the  act,  was  not  sufficient  in  law  to  abate  a  suit  instituted  in  the 
Circuit  Court  of  the  United  States  by  a  citizen  of  another  State 
against  the  representatives  of  a  citizen  of  Alabama,  "The  11th 
section  of  the  act  to  establish  the  judicial  courts  of  the  United 
States,"  said  the  court,  "carries  out  the  constitutional  right  of  a 
citizen  of  one  State  to  sue  a  citizen  of  another  State  in  the  Cir- 
cuit Court  of  the  United  States,  and  gives  to  the  Circuit  Court 
'original  cognizance  concurrent  with  the  courts  of  the  several 
States  of  all  suits  of  a  civil  nature  at  common  law  and  in  equity,' 
etc.,  etc.  It  was  certainly  intended  to  give  to  suitors,  having  the 
right  to  sue  in  the  Circuit  Court,  remedies  coextensive  with  these 
rights.  These  remedies  would  not  be  so  if  any  proceedings  under 
an  act  of  a  State  Legislature,  to  which  a  plaintiff  was  not  a  party, 
exempting  a  person  of  such  State  from  suit,  could  be  pleaded  to 
abate  a  suit  in  the  Circuit  Court." 

In  The  Union  Bank  of  Tennessee  v.  Jolly's  Administrators,' 
this  court  declared  that  the  law  of  a  State  "limiting  the  remedies 
of  its  citizens  in  its  own  courts  cannot  be  applied  to  prevent  the 
citizens  of  other  States  from  suing  in  the  courts  of  the  United 
States  in  that  State  for  the  recovery  of  any  property  or  money 
there  to  which  they  may  be  legally  or  equitably  entitled."  The 
same  doctrine  was  affirmed  in  Hyde  v.  Stone,*  and  in  Payne  v, 
Hook.«    *     *     *6 


2  14  Peters,  67, 

3  18    Howard,    506. 

4  20    Howard,    170. 
6  7   Wallace,  425. 

6  It  was  held  that  an  a^eement  made  in  accordance  with  the  terms  of  a 
Wisconsin  statute,  which  provided  that  no   foreign  insurance  company  could 


208  Cases  on  Federal  Procedure 

FIDELITY  TRUST  CO.  v.  GILL  CAR  CO. 

Circuit  Court,  S.  D.  Ohio.     1885. 

25  Fed.  737. 

Hammond,  J. — This  bill  was  filed  originally  in  the  Court  of 
Common  Pleas  of  Franklin  County  to  foreclose  a  mortgage.  That 
court  is  the  one  of  general  jurisdiction  in  that  county  for  such 
purposes  under  the  laws  of  the  State  of  Ohio.  A  demurrer  was 
filed  denying  its  jurisdiction,  because  it  appeared  by  the  bill  that 
subsequently  to  the  mortgage  the  mortgagor  had  made  a  general 
assignment  of  all  his  property  for  the  benefit  of  his  creditors; 
that  the  assignee  had  duly  filed  the  assignment,  given  bond,  and 
qualified  as  required  by  law  in  the  Probate  Court  of  the  proper 
county.  Pending  that  demurrer  the  cause  was  removed  to  this 
court  by  the  plaintiff,  where  the  demun-er  upon  the  pleadings  as 
they  then  stood  was  overruled  by  our  Brother  Sage,  and  the  parties 
were  required  to  answer.  The  answer  of  the  assignee  shows  that 
he  was  proceeding  with  all  reasonable  speed  to  administer  his 
trust  according  to  the  requirements  of  the  law  in  that  behalf.  The 
case  is  set  down  for  hearing  on  the  bill  and  answer. 

The  jurisdiction  of  this  court  is  denied,  and  that  is  the  sole 
question  involved  in  the  case  as  now  presented.  It  is  not  denied 
that  this  court  would  have  had  original  jurisdiction  to  maintain 
the  bill,  for  it  is  conceded  that  neither  by  legislation  nor  other- 
wise can  a  State  restrict  or  impair  the  jurisdiction  of  the  Federal 
courts  as  established  by  the  Constitution  and  laws  of  the  United 
States,  whether  exercised  by  original  process  or  by  that  of  removal 
from  the  State  courts.  But  it  is  said  that  where  a  cause  is  re- 
moved from  a  State  court,  the  jurisdiction  of  the  Federal  Court 
over  that  particular  suit  is  in  a  certain  limited  sense  a  derivative 
jurisdiction,  so  that  if  the  State  court  have  no  jurisdiction  over 
the  subject-matter  or  the  parties  the  Federal  Court  can  have  none, 
although  it  might  by  some  other  suit  originally  brought  or  re- 

traosact  business  in  that  state  until  it  hnd  promised  not  to  remove  any  suit 
for  trial  intfl  a  Federal  Court,  was  not  binding.  Insurance  Company  v.  Morse, 
87  U.  R.   (20  Wallace)  44.'),  453-459,  22  L.  Ed.  :56.5,  368-370  (1874). 

But  it  haa  been  held  that  a  state  Htatute,  providing  that  tho  license  criving 
a  foreign  corporation  permission  to  do  business  in  that  Ftate  would  be 
revoked,  if  it  removed  a  cAse  to  a  Federal  Court,  was  constitutional.  Secur- 
ity MTitual  Life  Ins.  Co.  v.  Prewitt,  202  U.  S.  246,  26  S.  Ct.  619,  50  L.  Ed. 
1013    (1906).— Ed. 


District  Courts  209 

moved  acquire  jurisdiction  over  the  controversy  between  the  par- 
ties, and  I  have  no  doubt  that  is  the  law. 

There  is  some  force  in  the  argument  that  when  the  parties  stand 
face  to  face  in  a  court  of  competent  jurisdiction  to  settle  the 
controversy,  it  is  not  of  material  importance  to  inquire  how  they 
got  there,  nor  whether  some  other  court  in  another  dominion  would 
have  had  the  power  to  try  the  case,  and  that  our  own  jurisdiction 
over  the  subject-matter  is  that  which  concerns  us,  and  not  that 
of  the  court  of  common  pleas.  There  is  also  force  in  the  position 
that  Congress  intended,  by  the  removal  acts,  as  well  as  by  the 
judiciary  act  conferring  original  jurisdiction  over  controversies 
between  citizens  of  different  States,  to  put  in  force  in  the  most 
plenary  manner  the  judicial  power  of  the  United  States  over  such 
controversies,  and  to  transfer  them  bodily  at  the  request  of  either 
party  into  its  own  courts.  This  line  of  argument  overlooks  cer- 
tain essential  features  of  every  jurisprudence,  and  subordinates  to 
a  general  principle  of  undoubted  soundness  important  rights  of 
the  parties  connected  with  the  details  of  every  litigation  concern- 
ing their  controversies.  Not  only  must  there  be  a  controversy, 
but  as  well  always  a  form  of  procedure  of  some  kind,  possessing 
all  the  necessary  elements  of  a  ''suit"  or  *'case"  in  court,  the 
most  important  of  which  is,  no  doubt,  that  there  shall  be  a  tribunal 
authorized  to  issue  that  indispensable  notice  which  we  call  a  writ 
or  process,  to  bring  the  parties  together  in  the  court;  and  this 
must  be  not  only  sufficient  in  form  and  in  fact,  but  in  legal  and 
technical  effect,  to  constitute  a  "suit"  or  "case"  which  can  only 
be  when  the  tribunal  undertaking  the  initiatory  steps  is  duly  au- 
thorized to  do  that  thing  and  proceed  with  the  matter  of  adjudging 
between  the  parties,  either  for  itself  or  by  transfen*ing  that  func- 
tion to  some  other  tribunal,  likewise  duly  authorized  to  proceed 
to  judgment.  Whatever  may  be  said  as  to  the  proper  definition 
of  the  term  "suit"  or  "case"  in  other  respects,  in  this  process 
of  inaugui-ating  fhe  procedure  by  which  the  controversy  is  to  be 
judicially  determined  there  must  be,  ex  necessitate  rei,  a  court 
having  power  to  set  in  motion  the  machinery  of  the  law,  and  this 
we  call  its  jurisdiction  over  the  subject-matter;  while  that  ef- 
fectual service  of  its  notice  which  is  legally  potential  to  bring  the 
parties  before  itself,  or  whatever  proper  tribunal  may  proceed 
further  in  the  progress  of  the  "case,"  we  call  its  jurisdiction 
over  the  parties.  Both  must  at  some  time  concur  to  establish  a 
lawfully  constituted  "suit"  by  which  the  controversy  is  to  be 
adjudged,  either  in  the  court  issuing  the  process  or  in  any  tri- 

Wheaton  C.  F.  P. — 14 


210  Cases  on  Federal  Procedure 

bunal  to  which  it  may  be  removed  for  judgment.  The  act  of 
Congress  does  not  provide  for  the  removal  of  the  controversy  alone, 
and  this  separate  and  apart  from  the  suit,  but  only  "any  suit 
of  a  civil  nature,  at  law  or  in  equity,  now  pending,  or  hereafter 
to  be  brought,  in  any  State  court,  *  *  *  j^  which  there  shall 
be  a  controversy  between  citizens  of  different  States,"  etc.  Act 
March  3,  1875,  §2  (18  St.  470). 

Now,  if  a  citizen  of  Pennsylvania,  holding  a  promissory  note 
made  by  a  citizen  of  Ohio,  on  which  he  desired  to  bring  suit,  should 
go  into  a  State  court  of  exclusive  criminal  jurisdiction,  file  his 
complaint,  sue  out  his  writ  of  summons,  have  it  served  in  the  usual 
way,  and  tlieu  remove  the  controversy  into  this  court,  could  it  be 
pretended  that  we  should  retain  the  jurisdiction  on  the  grounds 
urged  here?  I  think  not.  All  the  forms  of  a  suit  would  exist 
in  appearance;  "a  court,  process  executed,  and  pleadings  adapted 
to  the  purpose,  but  there  would  be  no  "suit"  in  court  any  more 
than  if  the  proceeding  had  been  commenced  in  a  moot  court,  such 
as  are  organized  in  law-schools  to  teach  practice.  I  do  not  mean 
to  say  that  we  measure  our  jurisdiction  wholly  by  that  of  the 
State  court,  and  that  nothing  can  be  adjudged  here  which  could 
not  have  been  adjudged  there;  for  cases  can  be  well  imagined 
where  this  ruling  should  be  subject  to  qualification,  but  not  in  its 
essential  requirements.  It  maj'  be  that  over  the  controversy  em- 
bodied in  the  suit  we  should  have  here  a  fuller  power  of  judg- 
ment than  was  possessed  bj^  the  State  court ;  or,  on  the  other  hand, 
that  court  may  have  had  a  more  enlarged  power  than  has  been 
given  to  us;  and  it  may  be  that  we  should,  as  the  case  required, 
extend  or  restrict  our  adjudication,  as  by  our  own  rule  of  judg- 
ment we  should  be  compelled  to  do;  but,  still,  the  fundamental 
principle  would  co-exist  with  that  state  of  circumstances,  and  we 
should  have  "a  suit"  pending  in  the  State  court  in  some  other 
sense  than  that  of  mere  form,  and  which  could  be  removed  here 
in  some  other  sense  than  that  of  having  a  controversy  over  which 
our  own  jurisdiction  was  plenary,  although  the  State  court  could 
have  had  none  at  all.  The  opinion  I  wish  to  express  is  confined 
to  this ;  that  wherever  there  is  a  total  absence  of  jurisdiction  over 
the  subject-matter  in  the  State  court,  so  that  it  had  no  power  to 
entertain  the  suit  in  which  the  controversy  was  sought  to  be 
litigated  in  its  then  existing  or  any  other  form,  there  cau  be  no 
jurisdiction  in  the  Federal  Court  to  entertain  it  on  removal,  al- 
though in  some  other  form  it  would  have  plenary  jurisdiction  over 
the  case  made  between  the  pnrtios.     This  is  not  a  mere  technical 


District  Courts  211 

necessity  of  the  situation,  but  a  matter  of  substantial  right,  which 
demands  that  before  a  defendant  can  be  required  to  submit  his 
case  to  any  court  the  legal  methods  of  procedure  appointed  by  law 
must  be  pursued  in  constructing  "the  suit,"  which  is  made  the 
vehicle  for  bringing  the  controversy  into  court.  The  plaintiff 
cannot  bring  the  defendant  into  court  in  any  way  that  suits  his 
convenience  or  his  whim,  but  must  do  it  in  the  manner  pointed 
out  by  law.  If  he  choose  to  take  action  in  a  State  court,  and 
then  remove  the  suit  here,  the  plaintiff  should  have  a  care  that 
the  State  court  has  the  necessary  jurisdiction  to  furnish  the  stock 
on  which  to  graft  our  proceedings,  whatever  may  be  the  outcome 
of  a  difference  in  the  two  jurisdictions.^ 


BUFOKD  v.  STROTITER. 

Circuit  Court,  D.  Iowa.     1881. 

W  Fed.  406. 

Love,  D.  J. — The  foregoing  cases  are  now  before  us  upon  mo- 
tions to  remand  the  same  to  the  State  courts  from  which  they  were 
brought  into  this  court.  The  motions  to  remand  are  all  placed 
bj^  counsel  upon  the  same  general  grounds.  It  is  insisted  as  to 
each  of  these  cases  that  it  is  a  proceeding  supplemental  to  the 
original  cause  out  of  which  it  grew,  and  being  a  mere  appendage 
to  the  judgment  rendered  in  the  original  case  it  cannot  be  sepa- 
rated from  the  same  and  brought  for  adjudication  here.  These 
several  motions  may  therefore  be  considered  together. 

There  is  no  question  of  jurisdiction  in  any  of  these  cases,  as 
far  as  citizenship  and  the  amount  involved  are  concerned. 

The  first  two  causes  are  proceedings  by  garnishment.  The  plain- 
tiff in  these  cases  obtained  judgments  against  the  defendants  in 
the  State  court,  caused  certain  parties  to  be  garnished,  and  having 
taken  issue  upon  the  answers  of  the  garnishees,  the  plaintiff  re- 

1  Only  a  portion  of  the  opinion  is  reprinted. 

"The  method  of  procedure  by  which  a  suit  is  brought  or  instituted  in 
a  court  of  the  state  is  merely  formal  and  model,  and  in  no  wise  effects 
the  right  of  removal  if  in  other  respects  the  defendant  possesses  that  right. ' ' 
City  of  Terre  Haute  v.  Evansville  &  T.  H.  E.  Co..  106  Fed.  545,  548   (1901). 

Compare  Da\dd  Lupton's  Sons  v.  Auto  Club  of  Am.,  225  U.  S.  489.  493- 
495,  499-500,  32  S.  Ct.  711,  712,  714,  56  L.  Ed.  1177,  1179,  1181-1182,' Ann. 
Cas.    1914   A.   699    (1912).— Ed. 


212  Cases  on  Federal  Procedure 

moved  the  issues  thus  made  for  determination  into  this  court. 
The  original  defendant  and  the  garnishees  now  move  to  remand. 

In  the  third  ease  the  plaintiff,  a  citizen  of  Wisconsin,  obtained 
a  judgment  in  the  State  court  against  an  Iowa  corporation,  and 
having  failed  to  obtain  satisfaction  of  the  judgment  he  seeks  by 
this  action  to  make  the  present  defendants,  who  are  stockholders 
in  the  corporation,  liable,  in  pursuance  of  chapter  181,  title  9, 
of  the  Code  of  Iowa.  The  plaintiff  in  the  present  action  against 
the  defendants,  one  of  whom  is  a  director  and  the  other  a  stock- 
holder in  the  corporation,  sets  out  his  judgment  and  the  return 
of  execution  nulla  bona;  charges  the  defendants  with  certain  al- 
leged frauds  to  his  injury  within  the  provisions  of  the  statute; 
and  prays  judgment  for  his  damages.  The  plaintiff  caused  the 
proceedings  against  the  stockholders  to  be  removed  into  this  court. 
The  defendants  move  to  remand  to  the  State  court. 

TVhat  is  the  true  principle  applicable  to  this  class  of  removal 
eases?  By  what  rule  or  criterion  may  we  determine  whether  or 
not  a  proceeding  which  is  merely  auxiliary  to  the  main  judgment 
or  decree  may  be  transferred  from  the  State  to  the  Federal  Court  ? 
It  is  idle  to  say  that  a  supplemental  proceeding  cannot  be  re- 
moved because  it  is  an  appendage  or  sequence  of  the  original  suit. 
This  is,  at  best,  but  reasoning  in  a  circle.  It  is  as  if  one  were  to 
affirm  that  a  supplemental  proceeding  cannot  be  removed  because 
it  is  a  supplemental  proceeding.  It  is,  in  fact,  substituting  one 
form  of  words  for  another  form  of  words.  We  must,  if  possible, 
find  some  other  principle  to  guide  our  judgment  in  such  cases. 
It  seems  to  me  that  the  true  principle  is  this:  Where  the  sup- 
plemental proceeding  is  in  its  character  a  mere  mode  of  execu- 
tion or  of  relief,  inseparably  connected  with  the  original  judg- 
ment or  decree,  it  cannot  be  removed,  notwithstanding  the  fact 
that  some  new  controversy  or  issue  between  the  plaintiff  in  the 
original  action  and  a  new  party  may  arise  out  of  the  proceeding. 
But  where  the  supplemental  proceeding  is  not  merely  a  mode  of 
execution  or  relief,  but  where  it,  in  fact,  involves  an  independent 
controversy  with  some  new  and  different  party,  it  may  be  removed 
into  the  Federal  Court;  always,  of  course,  assuming  that  other- 
wise the  proper  jurisdictional  facts  exist.  Every  court  must,  in 
the  nature  of  things,  have  the  right,  as  well  as  the  power,  to  carry 
its  own  judgments  into  execution.  To  take  from  any  court  the 
prerogative  of  executing  its  own  judgments  by  proper  process  or 
by  supplemental  proceedings,  when  necessary,  would  be  to  cripple 
its  jurisdiction   in  a  most  essential  matter.     It  would,  therefore, 


District  Courts  213 

be  difficult  to  persuade  us  that  Congress  meant  by  the  provision 
in  the  Act  of  1875  for  the  removal  of  "suits  of  a  civil  nature"  to 
authorize  the  transfer  of  controversies  growing  out  of  mere  modes 
of  execution  and  relief,  thus  directly  interfering  with  the  State 
courts  in  the  execution  of  their  own  judgments.  It  is  not  in  this 
sense  that  the  words  "suits  of  a  civil  nature"  are  ordinarily  used. 

Now,  the  process  of  garnishment  after  judgment  is  clearly  a 
mode  of  execution.  Its  purpose  is  to  obtain  satisfaction  of  the 
judgment  out  of  the  debtor's  effects  which  may  be  in  a  third  per- 
son's hands.  The  garnishment,  therefore,  is  inseparably  connected 
with  the  judgment.  If  money  is  realized  it  is  to  be  applied  to 
the  satisfaction  of  the  judgment.  Suppose  that  an  issue,  taken 
upon  the  garnishee's  answer,  should  be  removed  to  the  Federal 
Court  (the  original  case  remaining,  as  it  must  remain,  in  the 
State  court),  and  suppose  the  Federal  Court  should  deliver  judg- 
ment against  the  garnishee,  and  by  execution  or  otherwise  the 
money  should  be  collected,  how  could  the  Federal  Court  enter 
satisfaction,  the  judgment  not  being  under  its  control?  "We  see 
in  this  the  embarrassment  that  must  arise  from  the  attempt  to 
separate  the  garnishment  proceeding  from  the  judgment,  the  latter 
remaining  in  one  court  and  the  former  carried  to  another  and 
different  court. 

This  branch  of  the  rule  is  clearly  illustrated  by  the  case  of 
Webber  v.  Humphreys,  5  Dillon  223.  The  motion  in  that  case 
was  manifestly  a  mode  of  execution.  The  plaintiff  had  a  judg- 
ment against  a  Missouri  corporation,  and  the  State  of  Missouri 
provided  substantially  that  upon  a  return  of  nulla  bona  the  judg- 
ment creditor  might,  by  motion,  with  due  notice,  obtain  an  order 
from  the  court  for  execution  against  a  stockholder  to  an  amount 
equal  to  the  balance  of  his  unpaid  stock.  Here  the  unpaid  stock 
is  treated  as  assets  belonging  to  the  corporation,  and  the  statute 
provides  the  judgment  creditor  with  a  mode  of  execution  to  reach 
such  assets.  It  was  held  by  the  Circuit  Court  for  the  District  of 
Missouri  that  the  motion  could  not  be  transferred  from  the  State 
to  the  Federal  Court,  notwithstanding  the  fact  that  there  was  a 
new  controversy  between  the  plaintiff  and  a  new  and  different 
party. 

The  other  branch  of  the  rule,  that  there  can  be  no  removal  where 
the  supplemental  proceeding  is  a  mode  of  relief  inseparably  con- 
nected with  the  original  judgment,  is  illustrated  by  the  case  of 
Chapman  v.  Barger,  4  Dillon  557.  In  this  case  it  was  held  that 
the  proceeding  under  the  occupying  claimant  law,  for  the  value 


214  Cases  on  Federal  Procedure 

of  improvements  after  judgment  in  ejectment,  cannot  be  removed 
to  the  Federal  Court.  In  this  class  of  cases  the  statute  of  Iowa 
provides  a  mode  of  relief  after  judgment  for  the  occupying  claim- 
ant. Upon  the  filing  of  his  petition  the  execution  of  the  original 
judgment  is  to  be  suspended.  The  value  of  the  improvements 
is  to  be  ascertained,  and  also  the  value  of  the  land  aside  from 
the  improvements.  The  plaintiff  in  the  main  action  may  there- 
upon pay  the  appraised  value  of  the  improvements  and  take  the 
property.  If  the  plaintiff  fail  to  do  this  after  a  reasonable  time 
to  be  fixed  by  the  court,  the  defendant  may  take  the  property 
upon  paying  the  value  of  the  land  aside  from  the  improvements, 
etc.  Now  it  is  obvious  that  this  relief  is  inseparably  connected 
with  the  judgment  in  the  main  action.  A  court  not  having  the 
judgment  in  the  main  action  under  its  control,  could  not  give  to 
the  parties  the  full  measure  of  relief  provided  hy  the  statute; 
for  supposing  the  owner  of  the  land  should  pay  for  the  improve- 
ments, he  Avould  be  entitled  to  an  execution  to  put  him  in  posses- 
sion of  the  property,  and  a  writ  of  possession  could  issue  only 
upon  the  judgment  in  ejectment. 

It  is  obvious,  therefore,  that  the  motion  to  remand  the  first  two 
cases  above  named  must  be  sustained. 

As  to  the  third  case,  it  stands  upon  wholly  different  ground. 
The  proceeding  in  this  case  is  not  in  any  sense  a  mode  of  execu- 
tion or  relief  after  judgment.  It  does  not  aim  to  reach  assets  of 
the  corporation  in  the  hands  of  a  stockholder  or  director.  It  seeks 
no  relief  which  is  inseparably  connected  with  the  judgment  against 
the  corporation.  The  plaintiff  in  his  petition  charges  the  defend- 
ants, as  stockholders  and  directors  of  the  corporation,  with  cer- 
tain fraudulent  acts  and  representations  within  the  terms  of  the 
1071st  section  of  the  Code  of  Iowa,  and  prays  judgment  for  dam- 
ages as  provided  for  in  that  section.    The  section  is  as  follows : 

"Intentional  fraud,  in  failing  to  comply  substantially  with  the 
articles  of  incorporation,  or  in  deceiving  the  public  or  individuals 
in  relation  to  their  means  or  their  liabilities,  shall  subject  those 
guilty  thereof  to  fine  and  imprisonment,  or  both,  at  the  discretion 
of  the  court.  Any  person  who  has  sustained  injury  from  such 
fraud  may  recover  damages  therefor  against  those  participating 
in  sueh  fraud." 

Here  is  a  distinct  and  independent  cause  of  action  given  by 
the  last  clause  of  the  section.  The  plaintiff's  allegations  are 
founded  upon  facts  which  he  claims  bring  him  within  the  terms 
of  this  section.    The  gravamen  of  his  action  is  fraud,  and  he  prays 


District  Courts  215 

judgment  for  damages.  It  may  have  been  necessary  for  him  to 
set  out  the  judgment  and  show  that  an  execution  has  been  returned 
unsatisfied,  to  meet  the  conditions  of  the  1083d  section,  but  the 
judgment  is  not  the  foundation  of  his  action.  He  has  a  con- 
troversy with  new  parties  distinct  from  that  upon  which  the  judg- 
ment was  rendered.  He  seeks  to  establish  a  new  liability  against 
these  new  parties. 

It  is  further  argued  by  defendant  that  this  action  cannot  be 
maintained  here  because  it  is  in  the  nature  of  an  action  to  enforce 
a  statutory  penalty.  To  this  the  answer  is  that  it  is  not  an  action 
to  recover  penalties,  but  unliquidated  damages.  It  is  a  civil, 
not  a  penal  action.  Its  object  is  not  punishment,  but  indemnity 
for  a  Gi^  injury.  It  is  to  no  purpose  to  say  that  the  same  section 
of  the  statutes  provides  for  the  punishment  of  the  offense  com- 
mitted by  the  defendants  as  a  crime.  It  is  not  unusual  for  the 
same  statute  thus  to  provide  for  indemnity  by  civil  action  to  the 
individual  injured,  and  protection  to  the  public  by  penal  action 
and  indictment. 

The  motion  to  remand  in  this  case  is  denied.^ 


GOLD-WASHING  AND  WATER  CO.  v.  KEYES. 

Supreme  Court  of  the  United  States.     1877. 
96  V.  S.  199,  24  L.  Ed.  656. 
Mr.  Justice  Waite  delivered  the  opinion  of  tlie  court.     * 


*     # 


The  attempt  to  transfer  this  cause  was  made  under  that  part 
of  sect.  2  of  the  Act  of  1875  which  provides  for  the  removal  of 
suits  ' '  arising  under  the  Constitution  or  laws  of  the  United  States. ' ' 
In  the  language  of  Chief  Justice  Marshall,  a  case  "may  truly 
be  said  to  arise  under  the  Constitution  or  a  law  of  the  United 
States  whenever  its  correct  decision  depends  upon  the  construc- 
tion of  either"  (Cohens  v.  Virginia,  6  Wheat.  379)  ;  or  when  "the 
title  or  right  set  up  by  the  party  may  be  defeated  by  one  con- 
struction of  the  Constitution  or  law  of  the  United  States,  or  sus- 
tained by  the  opposite  construction"  (Osborne  v.  Bank  of  the 
United  States,  9  id.  822).     *     *     * 

1 A  good  discussion,  including  numerous  references  to  cases,  of  ancillary 
jurisdiction  is  to  be  found  in  1  Foster  Federal  Practice  (5th  Ed.)  pp.  142- 
151.— Ed.  ^^ 


216  Cases  on  Federal  Procedure 

A  cause  cannot  be  removed  from  a  State  court  simply  because, 
in  the  progress  of  the  litigation,  it  may  become  necessary  to  give 
a  construction  to  the  Constitution  or  laws  of  the  United  States. 
The  decision  of  the  case  must  depend  upon  that  construction. 
The  suit  must,  in  part  at  least,  arise  out  of  a  controversy  between 
the  parties  in  regard  to  the  operation  and  effect  of  the  Constitu- 
tion or  laws  upon  the  facts  involved.  That  this  was  the  intention 
of  Congress  is  apparent  from  sect.  5  of  the  Act  of  1875,  which 
requires  the  Circuit  Court  to  dismiss  the  cause,  or  remand  it  to 
the  State  court,  if  it  shall  appear,  "at  any  time  after  such  suit 
has  been  brought  or  removed  thereto,  that  such  suit  does  not  really 
or  substantially  involve  a  dispute  or  controversy  properly  within 
the  jurisdiction  of  said  Circuit  Court.  "^ 


WEST  V.  AURORA  CITY. 

Suprem-e  Court  of  the  United  States.     1867. 

73  V.  8.  (6  Wallace)  139,  18  L.  Ed.  819. 

Error  to  the  Circuit  Court  for  Indiana. 

The  twelfth  section  of  the  judiciary  act  provides : 
"That  if  a  suit  be  commenced  in  anj'-  State  court  against  an 
alien,  or  by  a  citizen  of  the  State  in  which  the  suit  is  brought, 
against  a  citizen  of  another  State,  *  *  *  and  the  defendant 
shall,  at  the  time  of  entering  his  appearance,  file  his  petition  for 
the  removal  of  the  cause  for  trial  in  the  next  Circuit  Court, 
*  *  *  and  offer  good  and  sufficient  surety  for  his  entering 
appearance  in  such  State  court,  on  the  first  day  of  its  session,  and 
file  copies  of  said  process  against  him,     *     *     *     it  shall  be  the 

1  The  facts  and  part  of  the  opinion   am  omitted. 

Rpo  also  Westbrook  v.  Director  General  of  Railroads,  263  Fed.  211,  212- 
213    (1D20). 

When  a  Icpal  quostion  arising  under  the  Constitution  or  a  Inw  or  a  treaty 
of  the  United  States  is  decidrd  by  the  Supreme  Court,  it  ceases  to  be  a 
ffdoral  qufHtion.  Myrtle  v.  Nevada,  C.  &  O.  l?y.  Co.,  137  Fed.  193,  195 
(1906). 

But  see  Mallon  v.  Hyde,  76  Fed.  388,  388   (1896). 

For  cases  dealing  with  questions  as  to  when  the  suit  is  one  of  a  civil 
nature  at  law  or  in  equity,  what  the  amount  in  flispute  is,  etc.,  see  cases 
under  section  24    (1)    of  the  .Tiulici.il  Code. — Ed. 


District  Courts  217 

duty  of  the  State  court  to  accept  the  surety  and  proceed  no  further 
in  the  cause,  *  *  *  and  such  copies  being  entered  as  afore- 
said in  such  court  of  the  United  States,  the  cause  shall  proceed 
there  in  the  same  manner  as  if  it  had  been  brought  by  original 
process." 

The  code  of  Indiana  also  provides  that  in  suits  brought  in  that 
State : 

"The  defendant  may  set  forth  in  his  answer  as  many  grounds 
of  defence,  counter-claim,  and  set-off,  whether  legal  or  equitable, 
as  he  shall  have.  Each  shall  be  distinctly  stated  in  a  separate 
paragraph,  and  numbered,  and  clearly  refer  to  the  cause  of  action 
intended  to  be  answered." 

With  these  statutory  provisions  in  existence.  West  and  Torrance, 
citizens  of  Ohio,  brought  suit  in  one  of  the  State  courts  of  Indiana 
against  the  City  of  Aurora,  Indiana.  The  nature  of  their  action 
did  not  clearly  appear  from  the  record,  but  it  seemed  to  have  been 
a  suit,  by  petition,  under  the  State  code,  against  the  city  just 
named,  for  the  recovery  of  the  amount  of  the  matured  interest 
coupons  of  certain  bonds. 

To  this  suit  the  defendants  seemed  to  have  made  defences  by 
answer  under  the  code,  and  subsequently  to  have  filed,  by  leave 
of  the  court,  as  an  additional  answer,  three  paragraphs  setting 
up  new  defensive  matter,  in  each  of  which  the  defendant  prayed 
an  injunction  to  restrain  the  plaintiffs  from  further  proceeding 
in  any  suit  on  the  coupons  or  bonds,  and  from  transferring  them 
to  any  third  parties,  and  for  a  decree  that  the  bonds  be  delivered 
up  to  be  cancelled. 

Upon  the  filing  of  these  additional  paragraphs  the  plaintiffs 
entered  a  discontinuance  of  their  suit,  and,  assuming  that  under 
the  code  the  new  paragi-aphs  of  the  answer  would  remain,  in  sub- 
stance, a  new  suit  against  them  for  the  cause  and  object  set  forth 
in  them,  filed  their  petition  for  the  removal  of  the  cause  into  the 
Circuit  Court  of  the  United  States.  The  petition  was  allowed  by 
the  State  court,  and  the  new  paragraphs,  without  any  other  por- 
tion of  the  record  of  the  suit  in  that  court,  except  enough  to  show 
its  title  and  the  entry  of  discontinuance,  were  sent  into  the  Cir- 
cuit Court.  By  that  court  they  were  remanded  to  the  State  court 
as  not  constituting  a  suit  that  could  be  removed  under  the  twelfth 
section  of  the  Judicial  Act. 

To  this  action  of  the  Circuit  Court,  West  and  Torrance  took 
exceptions,  and  the  case  was  now  here  on  error ;  the  question  being 
whether  the  action  of  the  Circuit  Court  was  right. 


218  Oases  on  Federal  Phocedure 

The  Chief  Justice  delivered  the  opinion  of  the  court. 

We  think  that  the  Circuit  Court  was  clearly  right  in  its  action. 
The  filing  of  the  additional  paragraphs  did  not  make  a  new  suit 
within  the  meaning  of  the  Judicial  Act.  They  were  in  the  nature 
of  defensive  pleas,  coupled  with  a  prayer  for  injunction  and  gen- 
eral relief.  This,  if  allowed  by  the  code  of  Indiana,  might  give 
them,  in  some  sense,  the  character  of  an  original  suit,  but  not 
such  as  could  be  removed  from  the  jurisdiction  of  the  State  court. 
The  right  of  removal  is  given  only  to  a  defendant  who  has  not 
submitted  himself  to  that  jurisdiction ;  not  to  an  original  plaintiff 
in  a  State  court,  who,  by  resorting  to  that  jurisdiction,  has  become 
liable  under  the  State  laws  to  a  cross-action. 

And  it  is  given  only  to  a  defendant  who  promptly  avails  him- 
self of  the  right  at  the  time  of  appearance,  by  declining  to  plead 
and  filing  his  petition  for  removal. 

In  the  case  before  us,  West  and  Torrance,  citizens  of  Ohio, 
voluntarily  resorted,  as  plaintiffs,  to  the  State  Court  of  Indiana. 
They  were  bound  to  know  of  what  rights  the  defendants  to  their 
suit  might  avail  themselves  under  the  code.  Submitting  them- 
selves to  the  jurisdiction  they  submitted  themselves  to  it  in  its 
whole  extent.  The  filing  of  the  new  paragraphs,  therefore,  could 
not  make  them  defendants  to  a  suit,  removable  on  their  application 
to  the  Circuit  Court  of  the  United  States. 

It  is  equally  fatal  to  the  supposed  right  of  removal  that  the 
record  presents  only  a  fragment  of  a  cause,  unintelligible  except 
by  reference  to  other  matters  not  sent  up  from  the  State  court, 
and  through  explanations  of  counsel. 

A  suit  removable  from  a  State  court  must  be  a  suit  regularly 
commenced  by  a  citizen  of  the  State  in  which  the  suit  is  brought, 
by  process  served  upon  a  defendant  who  is  a  citizen  of  another 
State,  and  who,  if  he  does  not  elect  to  remove,  is  bound  to  submit 
to  the  jurisdiction  of  the  State  court. 

This  is  not  such  a  suit,  and  the  order  of  the  Circuit  Court  re- 
manding the  cause  to  the  State  court  must  therefore  be 

Affii-med.^ 

1  The  faft  that  an  original  dpfondant  sets  up  a  counterclaim  does  not 
make  the  ori^^inal  jilaintifT  a  defendant  for  the  purpose  of  removing;  that 
part  of  the  c^use  dealinfj  witli  the  counterclaim  to  a  Federal  Court.  Illinois 
Cent.  R.  Co.  v.  A.  Waller  &  Co.,  Ifi4  Fed.  358  (1908).  Price  &  Hart  v.  T.  J. 
Ellis   &   Co.,    129   Fed.    482    (1904)    contra. 

Ab  to  tho  effect  of  original  defendant 's  setting  up  a  eross-eomplaint,  see 
Hansen  v.    Pacific   Coast   As{>halt   Cement   Co.,   2i:5   Fed.    28.'J    (1917). 

Keo  also  Hudson  Kivcr  Railroad  &  Terminal  Co.  v.  Day,  54  Fed.  545,  546 
(1893).— Ed. 


District  Courts  219 

HALLAM  V.  TILLINGHAST. 

Circuit  Court,  D.  Washington,  W.  D.     1896. 

75  Fed.  849. 

Hanford,  District  Judge. — This  is  a  suit  in  equity,  originally 
commenced  in  the  superior  court  of  the  State  of  Washington,  for 
Pierce  County,  against  the  defendant,  as  receiver  of  an  insolvent 
national  bank,  appointed  by  the  comptroller  of  the  currency.  The 
object  of  the  suit  is  to  reach  assets  of  an  insolvent  national  bank, 
and  to  establish  a  claim  of  priority  against  the  funds  of  the  bank 
in  the  official  custody  of  the  defendant  as  such  receiver.  The 
amount  involved  is  $478.75.  The  case  was  removed  into  this  court 
by  the  defendant  on  the  ground  that  Federal  questions  were  in- 
volved, and  the  defendant  has  the  right  to  invoke  the  jurisdiction 
of  the  Federal  Court  in  all  matters  of  litigation  affecting  his  trust. 
The  complainant  denies  the  jurisdiction  of  this  court,  and  has 
moved  to  remand  the  cause  to  the  court  in  which  it  was  originall.^• 
commenced.  In  the  cases  of  Price  v,  Abbott,  17  Fed.  506 ;  Arm- 
strong V.  Ettlesohn,  36  Fed.  209 ;  and  Armstrong  v.  Trautman, 
Id.  275, — and  other  cases  cited  as  authority  by  the  defendant,  the 
jurisdiction  of  the  Circuit  Court  appears  to  have  been  sustained 
on  the  ground  that  a  receiver  of  a  national  bank  is  an  officer  of 
the  United  States  by  the  third  subdivision  of  section  629  of  the 
Revised  Statutes  of  the  United  States.  That  law,  however,  by  its 
terms,  is  applicable  only  to  cases  at  common  laAv  commenced  orig- 
inally in  a  Circuit  Court,  and  in  which  an  officer  of  the  United 
States  is  plaintiff.  It  does  not  appl}^  to  a  suit  in  equity,  nor  to 
a  case  in  which  an  officer  of  the  United  States  is  defendant,  and 
no  authority  is  given  to  remove  such  a  case  from  a  State  court 
into  a  Circuit  Court.  This  case  is  one  arising  under  the  laws  of 
the  United  States,  and,  if  the  amount  involved  were  sufficient,  it 
would  be  removable  under  the  acts  defining  the  jurisdiction  of 
the  Circuit  courts,  approved  March  3,  1875,  and  March  3,  1887. 
But  the  Act  of  March  3,  1875,  limits  the  right  of  removal  to  cases 
where  the  matter  in  dispute,  exclusive  of  costs,  amounts  to  the 
sum  or  value  of  $500 ;  and  by  the  Act  of  March  3,  1887,  the  amount 
necessary  to  give  jurisdiction,  and  to  entitle  a  defendant  to  re- 
move a  cause  into  a  Circuit  Court,  is  raised  to  $2,000.^ 

1  Only   a   portion   of   the   opinion   is   reprinted. — Ed. 


220  Cases  on  Federal  Procedure 

WILSON  V.  SMITH. 

Circuit  Court,  E.  D.  Pennsylvania.     1895. 

66  Fed.  81. 

Sur  Motion  to  Remand  to  State  Court. 

Dallas,  Circuit  Judge, — This  case  was  originally  brought  in  a 
court  of  Pennsylvania  by  a  citizen  of  that  State.  The  defend- 
ant, a  citizen  of  Delaware,  caused  its  removal  to  this  court.  The 
plaintiff  insists  that  it  should  be  remanded,  and  upon  two  grounds, 
with  reference  to  which  his  motion  to  that  end  will  be  decided. 

1.  It  is  asserted  that  the  defendant,  who  is  sued  as  executor, 
"having  come  into  this  State,  and  having  taken  out  ancillary  let- 
ters, is,  for  the  purpose  of  this  suit,  a  citizen  of  Pennsylvania,  and 
there  is  no  diverse  citizenship  as  required  by  the  act."  This  prop- 
osition is  in  conflict  with  the  law  as  settled  by  the  highest  authority. 
"Where  the  jurisdiction  of  the  courts  of  the  United  States  de- 
pends upon  the  citizenship  of  the  parties,  it  has  reference  to  the 
parties  as  persons.  A  petition  for  removal  must,  therefore,  state 
the  personal  citizenship  of  the  parties,  and  not  their  official  citi- 
zenship, if  there  can  be  such  a  thing."  Amory  v.  Amory,  95  U. 
S.  187.1 

2.  It  is  further  contended  that,  notwithstanding  the  diverse 
citizenship  of  the  parties,  this  suit  is  one  of  which  a  Circuit  Court 
of  the  United  States  has  not  jurisdiction.  It  is  an  action,  in  com- 
mon-law form,  for  the  recovery  of  a  legacy.  It  was  brought  in 
conformity  with  a  statute  of  the  State  of  Pennsylvania  which  au- 
thorizes such  actions.  Act  Feb.  24,  1834  (P.  L.  p.  83,  §  50)  ;  Purd. 
Dig.  p.  449,  pi.  215.  Without  this  statute,  a  proceeding  in  ac- 
cordance with  chancery  methods  would  have  been  the  only  avail- 
able one  in  the  State  court.  It,  however,  only  provided  a  new 
form  of  remedy;  the  tribunal  remained  the  same,  and  its  juris- 
diction was  not  extended  or  altered.  In  Pennsylvania  the  same 
courts  administer  both  law  and  equity,,  and  whether  any  partic- 
ular case  is  of  the  one  class  or  the  other  is  not  a  question  of  juris- 
diction, but  of  form  merely.     Adams  v.  Beach,  1  Phila.  101.    Ac- 

1  For  further  fasos  on  reprcscntntivo  parties,  sec  In  ro  M  'Clean,  26  Fed. 
49  (ISSri)  (guardian  of  minor;  lirisenden  v.  Cliamberlain,  53  Fed.  307,  310 
(1892)    receiver    of   railroad    company. 

But  Bee  Hates  v.  Now  Orl.-fuis,  H.  H.  &  V.  R.  Co.,  16  Fed.  294  (1883) 
trustee;  Wileoxen  v.  Cliica^o,  H.  &  q.  U.  (^i.,  10  Fed.  444,  448  (1902)  guardian 
of  insane  perwon;  Wopw  v.  Cln.ano.  R.  &  Q.  M.  Co.,  W.\  Fed.  728,  734  (1912) 
agent,  whoHC  agency  is  not  coupled  with  an  interest. — Ed. 


District  Courts  221 

cordingly,  those  courts  have  held  that  cases  under  this  particular 
statute  are,  substantially,  suits  in  equity,  Seibert  v.  Butz,  9  Watts 
494;  Dunlop  v.  Bard,  2  Pen.  &  W.  309.  The  subject-matter  of 
the  present  litigation  is  within  this  court's  jurisdiction  in  equity, 
but  not  at  law ;  and  inasmuch  as  here  the  distinction  between  equity 
and  law  cannot  (as  in  the  Pennsylvania  courts)  be  disregarded, 
nor  the  principles  and  remedies  peculiar  to  either  system  be  ap- 
plied under  the  other,  it  is  contended  that  this  cause  has  been 
transferred  to  a  court  which,  as  a  court  of  equity,  cannot  enter- 
tain it,  because  it  is  an  action  at  law,  and  which,  as  a  court  of 
law,  cannot  take  cognizance  of  it,  for  want  of  jurisdiction.  This 
contention  involves  the  acceptance  of  a  consequence,  which,  as  I 
ventured  to  suggest  upon  the  argument,  seems  to  be  inadmissible. 
That  a  State,  by  simply  prescribing  a  peculiar  form  of  procedure 
for  its  own  courts,  may,  in  any  case,  divest  the  rightful  jurisdic- 
tion of  those  of  the  United  States,  is  a  doctrine  to  which  I  am 
wholly  unable  to  assent,  and  which  does  not  appear  to  be  sup- 
ported by  any  precedent  or  authority.  The  Act  of  Congress  of 
1888  (25  Stat.  433)  provides  that  any  suit  of  a  civil  nature,  at 
law  or  in  equity,  may  be  removed,  wherever  the  sum  in  dispute 
amounts  to  $2,000,  and  the  controversy  is  between  citizens  of  dif- 
ferent States;  and  the  right  thus  accorded  pertains  to  all  pro- 
ceedings of  a  civil  nature,  of  whatever  form,  provided  they  are 
suits  at  law  or  in  equity.  Any  case  which  in  the  State  court  was 
either  the  one  or  the  other  of  those  becomes,  upon  its  proper  re- 
moval to  a  Circuit  Court  of  the  United  States,  cognizable  by  it. 
Fuller  V.  Wright,  23  Fed.  833 ;  In  re  Cilley,  58  Fed.  987 ;  Clark 
V.  Smith,  13  Pet.  203 ;  Parker  v.  Overman,  18  How.  141 ;  Thomp- 
son V.  Railroad  Co.,  6  Wall.  138 ;  Searl  v.  School  Dist.,  124  U.  S. 
197,  8  Sup.  Ct.  460.  Whether  the  jurisdiction  of  this  court  is 
upon  its  law  side  or  its  equity  side  will  be  determined  "by  the 
essential  character  of  the  case,"  but  the  right  of  removal  is  not 
affected  by  any  such  question.  That  right  exists  if,  upon  either 
side,  the  requisite  jurisdiction  exists.  Where  a  cause  brought  here 
by  removal  cannot  be  entertained  upon  the  one  side,  it  must  be 
assigned  to  the  other,  but  it  is  not  to  be  remitted  to  the  State  court 
if,  upon  either  side,  the  Federal  Court  is  competent  to  retain  and 
decide  it.  Van  Norden  v.  Morton,  99  U.  S.  378.  In  the  cases 
in  which  the  right  of  removal  has  been  denied  or  questioned,  the 
proceedings  in  the  State  courts  have  been,  in  their  nature,  not 
civil  suits,  either  at  law  or  in  equity,  or  else  some  independent 
condition  of  the  statute  (ex  gr.  as  to  the  sum  in  dispute)  has  been 


222  Cases  on  Federal  Procedure 

lacking.  Gaines  v.  Fuentes,  92  U.  S.  10;  In  re  Cilley,  58  Fed. 
977;  Bey  v.  Railway  Co.,  45  Fed.  82;  In  re  Pennsylvania  Co., 
137  U.  S.  451,  11  Sup.  Ct.  141.    The  motion  to  remand  is  denied. 


DOW  V.  BRADSTREET  CO. 

Circuit  Caurt,  S.  D.  Iowa,  W.  D.     1891. 

46  Fed.  824. 

At  Law.    Motion  to  remand. 

Shiras,  J. — In  the  petition,  filed  in  this  case  in  the  District 
Court  of  Crawford  County,  Iowa,  it  is  averred  that  the  Brad- 
street  Company  is  a  corporation  created  under  the  laws  of  the 
State  of  Connecticut,  engaged  in  carrying  on  the  business  of  a 
mercantile  agency  throughout  the  United  States ;  that  the  defend- 
ant H.  S.  Green  is  an  agent  and  correspondent  of  said  company, 
located  at  Dow  City,  Crawford  County,  Iowa;  that  on  or  about 
the  21st  of  December,  1890,  said  Green  sent  to  the  office  of  the 
Bradstreet  Company  at  Des  Moines,  Iowa,  a  telegram  stating  that 
the  plaintiff,  who  was  engaged  in  business  at  Dow  City,  Iowa,  had 
transferred  a  large  quantity  of  real  estate,  and  on  the  24th  of 
December,  1890,  said  Green  sent  or  caused  to  be  sent  to  the  Brad- 
street  Company  a  further  telegram  to  the  effect  that  plaintiff  had 
failed  in  business ;  that  the  Bradstreet  Company  caused  to  be  pub- 
lished to  all  of  its  subscribers  the  information  contained  in  the 
telegrams  mentioned ;  that  the  statements  thus  forwarded  by  Green 
and  published  by  the  company  were  false,  and  w^orked  great  in- 
jury to  plaintiff,  causing  him  damages  in  the  sum  of  $100,000, 
for  which  amount  judgment  is  prayed  against  the  defendants. 
The  defendant  company  in  due  season  filed  a  petition  for  the  re- 
moval of  the  case  into  this  court,  averring  therein  that  the  com- 
pany was,  when  the  suit  was  brought,  and  continues  to  be,  a  cor- 
poration created  under  the  laws  of  the  State  of  Connecticut;  that 
the  plaintiff  was  and  is  a  citizen  of  the  State  of  Iowa;  that  the 
action  involved  two  controversies, — one  against  the  defendant 
Green  for  sending  the  alleged  false  information  by  telegram  to  the 
company,  and  the  other  against  the  company  for  communicating 
or  publishing  the  same  to  its  subscril)ers, — and  that  the  contro- 
versies are  separable,  and  for  that  reason  the  case  is  a  removable 
r)no,  and  fniili'T,  lliat  llic  (Irfciidiinl  CrfMMi  is  joined  as  a  defend- 


DiSTKicT  Courts  223 

ant  to  prevent  a  removal  of  the  case ;  that  he  is  a  sham  defendant, 
has  no  interest  in  the  controversy,  never  was  the  agent  of  the 
company,  never  sent  any  telegram  to  the  company  touching  the 
plaintiff,  and  has  no  connection  with  the  matter,  and  is  simply 
joined  as  a  defendant  for  the  purpose  of  defeating  the  jurisdic- 
tion of  this  court.  In  support  of  the  petition  for  removal  the 
affidavits  of  the  agent  of  the  company  at  Des  Moines  and  of  the 
defendant  Green  are  filed,  in  which  it  is  averred  that  Green  waS 
not  the  agent  or  correspondent  of  the  company  at  Dow  City  or 
elsewhere;  that  he  did  not  furnish  any  information,  by  telegram 
or  otherwise,  to  the  company  in  regard  to  the  plaintiff,  and  had 
no  connection,  direct  or  indirect,  therewith.  A  transcript  of  the 
record  having  been  filed  in  this  court,  the  plaintiff  now  moves  for 
an  order  remanding  the  case  to  the  State  court,  and  thus  the  ques- 
tion of  the  jurisdiction  of  this  court  is  presented  for  determina- 
tion.    *     *     * 

The  next  question  for  determination  is  that  arising  upon  the 
averment  of  the  petition  for  removal,  that  Green  is  but  a  sham 
party,  having  been  joined  as  a  defendant  for  the  purpose  of  de- 
feating the  jurisdiction  of  this  court.  The  first  point  for  consid- 
eration is  whether,  if  true,  such  fact  can  be  shown  in  aid  of  a 
petition  for  removal  filed  by  the  real  defendant.  The  principle 
has  always  been  recognized  that  the  joinder  of  purely  nominal 
parties  in  an  action  cannot  defeat  the  removal  of  the  cause  by 
the  real  party  in  interest  if  the  jurisdictional  facts  exist  as  to 
him.  Wood  v.  Davis,  18  How.  467 ;  Sewing-Machine  Cases,  18 
Wall.  553 ;  Bacon  v.  Rives,  106  U.  S.  99,  1  Sup.  Ct.  Rep.  3.  If, 
then,  in  determining  the  question  of  jurisdiction,  either  original 
or  by  removal,  it  is  permissible  to  ignore  the  presence  of  parties 
who,  upon  the  record,  appear  to  be  purely  nominal  parties,  having 
no  real  interest  in  or  relation  to  the  cause  of  action,  should  not 
the  same  rule  apply  in  case  it  appears  that  a  given  party  has 
been  made  such,  solely  for  the  purpose  of  defeating  the  right  of 
removal  to  the  Federal  Court,  without  such  party  having  any 
interest  in  the  subject  of  litigation?  In  the  case  of  Society  v. 
Ford,  114  U.  S.  635,  5  Sup.  Ct.  Rep.  1104,  it  was  held  that  the 
colorable  or  fraudulent  assignment  of  a  cause  of  action  from  A. 
to  B.,  the  latter  being  a  citizen  of  the  same  State  as  the  defendant, 
and  the  suit  being  brought  in  the  name  of  B.,  could  not  be  availed 
of  as  ground  for  removal,  which  right  would  have  existed  had  the 
suit  been  in  the  name  of  A,  It  was  held  that  the  colorable  or 
fraudulent  nature  of  the  assignment  would  be  a  defense  to  the 


224  Cases  on  Federal  Procedure 

action  as  brought,  but  that  proof  of  the  fraudulent  purpose  of 
the  assignment  would  not  have  the  effect  of  changing  the  action 
from  one  between  citizens  of  the  same  State  to  one  between  citi- 
zens of  different  States.  To  the  same  effect  was  the  ruling  in 
Oakley  v.  Goodnow,  118  U.  S.  43,  6  Sup.  Ct.  Rep.  944.  In  those 
cases  there  was  but  a  single  plaintiff,  and  therefore  the  question 
of  the  joinder  of  nominal,  immaterial,  or  sham  parties  with  the 
real  parties  in  interest  was  not  presented.  In  Arapahoe  Co.  v. 
Railway  Co.,  4  Dill.  277,  Justice  Miller  ruled  that — 

"It  would  be  a  very  dangerous  doctrine, — one  utterly  destruc- 
tive of  the  rights  which  a  man  has  to  go  into  the  Federal  courts 
on  account  of  his  citizenship, — if  the  plaintiff  in  the  case,  in  in- 
stituting his  suit,  can,  without  any  right  or  reason  or  just  cause, 
join  persons  who  have  not  the  requisite  citizenship,  and  thereby 
destroy  the  rights  of  parties  in  Federal  courts.  We  must  there- 
fore be  astute  not  to  permit  devices  to  become  successful  which 
are  used  for  the  very  purpose  of  destroying  that  right. ' ' 

The  ruling  of  Justice  Miller  in  this  case  was  cited  approvingly 
by  the  Supreme  Court  in  Walden  v.  Skinner,  101  U.  S.  577.  The 
reasoning  which  sustains  the  doctrine,  which  is  now  too  firmly 
established  to  be  called  in  question,  that  in  determining  the  juris- 
diction of  the  Circuit  Court  of  the  United  States  regard  will  be 
had  only  to  the  citizenship  of  real  parties  in  interest,  disregard- 
ing wholly  all  nominal  or  immaterial  parties  upon  the  record, 
seems  to  me  to  be  equally  applicable  to  cases  wherein  it  is  made 
to  appear  that  a  party,  having  in  fact  no  interest  in  or  actual 
connection  with  the  subject  of  litigation,  has  been  joined  as  a 
party  with  those  actually  interested,  for  the  sole  purpose  of  de- 
feating the  jurisdiction  of  the  Federal  Court.  A  fraud  of  this 
nature,  if  successful,  deprives  the  citizen  of  a  right  conferred 
upon  him  by  the  Constitution  and  laws  of  the  United  States,  and 
it  certainly  must  be  true  that  it  cannot  be  perpetrated  without 
a  remedy  existing  for  its  correction.  Unless  this  be  so,  then  it 
is  possible  to  defeat  in  every  instance  the  right  of  removal,  when 
the  same  depends  upon  the  citizenship  of  the  adversary  parties, 
by  the  easy  device  of  joining  as  a  party  one  who  has  no  interest 
in  the  case,  but  who  is  a  citizen  of  the  same  State  as  the  plaintiff. 
In  Plymouth  Min.  Co.  v.  Amador  Canal  Co.,  118  U.  S.  264,  6  Sup. 
Ct.  Rep.  1034,  it  was  said: 

"Under  these  circumstances,  the  averments  in  the  petition  that 
the  defendants  were  wrongfully  made  to  avoid  a  removal  can  be 
of  no  avail  to  the  Circuit  Court  upon  a  motion  to  remand,  until 
they  are  proven;  and  that,  so  far  as  the  present  record  discloses, 


District  Courts  225 

was  not  attempted.  The  affirmative  of  the  issue  was  on  petitioning 
defendant.  That  corporation  was  the  moving  party,  and  was  bound 
to  make  out  its  case." 

In  Railroad  Co.  v.  Wangelin,  132  U.  S.  599,  10  Sup.  Ct.  Rep. 
203,  is  found  the  following: 

"As  to  the  suggestion,  made  in  argument,  that  the  Southeast  and 
St.  Louis  Ry.  Company  was  fraudulently  joined  as  a  defendant 
in  the  State  court  for  the  purpose  of  depriving  the  Louisville  and 
Nashville  R.  R.  Company  of  the  right  to  remove  the  case  into  the 
Circuit  Court  of  the  United  States,  it  is  enough  to  say  that  no 
fraud  was  alleged  in  the  petition  for  removal,  or  pleaded  or  offered 
to  be  proved  in  the  Circuit  Court." 

Although  not,  perhaps,  express  adjudications  upon  the  ques- 
tion, these  intimations  of  the  views  of  the  Supreme  Court  support 
the  doctrine  that  it  is  open  to  a  party  who  desires  to  remove  a 
case  brought  against  him  to  show  upon  proper  allegations  and 
proof  that  a  co-defendant  has  been  wrongfully  joined  with  him 
for  the  fraudulent  purpose  of  defeating  the  actual  right  of  re- 
moval to  the  Federal  Court,  and  this  is  the  conclusion  reached 
in  the  present  case.  To  properly  present  the  question,  the  allega- 
tions of  fact  relied  upon  as  showing  the  fraudulent  joinder  of 
the  party  should  be  made  in  the  petition  for  removal,  unless  they 
otherwise  appear  upon  the  face  of  the  record.  If  the  facts  al- 
leged, if  true,  make  out  the  charge  of  fraudulent  misjoinder  of 
parties  for  the  purpose  named,  and  the  other  party  desires  to  make 
issue  upon  the  truth  thereof,  then  the  trial  thereof  must  be  had 
in  the  Federal  Court,  for,  as  is  said  by  the  Supreme  Court  in 
Railroad  Co.  v.  Daugherty,  138  U.  S.  298,  11  Sup.  Ct.  Rep.  306, 
**it  is  thoroughly  settled  that  issues  of  fact  raised  upon  petitions 
for  removal  must  be  tried  in  the  Circuit  Court  of  the  United 
States."  See,  also,  Carson  v.  Hyatt,  118  U.  S.  279,  6  Sup.  Ct. 
Rep.  1050 ;  Railroad  Co.  v.  Dunn,  122  U.  S.  513,  7  Sup.  Ct.  Rep. 
1262 ;  Crehore  v.  Railroad  Co.,  131  U.  S.  240,  9  Sup.  Ct.  Rep.  692. 
As  already  stated,  in  the  petition  for  removal  filed  in  this  cause, 
the  same  being  under  oath,  the  allegation  is  expressly  made  that 
the  defendant  Green  never  was  the  agent  of  the  Bradstreet  Com- 
pany, did  not  send  the  telegrams  referred  to  in  plaintiff's  peti- 
tion, had  no  connection  therewith,  and  that  he  is  joined  as  a  co- 
defendant  without  reason  therefor,  and  for  the  express  purpose  of 
defeating  the  jurisdiction  of  this  court,  and  in  support  of  the 
petition  the  affidavits  of  the  defendant  company  and  of  H.  L. 
Green  are  filed.  The  motion  to  remand  does  not  raise  an  issue 
upon  the  facts  thus  alleged  and  sustained,  but  presents  the  legal 

Wheaton  C.  F.  P.— 15 


226  Cases  on  Federal  Procedure 

questions  already'  discussed,  and  upon  these  the  ruling  must  be 
adverse  to  the  motion  to  remand.  We  are  as  j'et  without  prec- 
edents to  guide  us  in  determining  the  proper  practice  to  be  fol- 
lowed in  cases  of  this  character.  No  objection  is  now  seen  to 
the  course  pursued  in  the'  present  case.  By  setting  forth  fully 
in  the  petition  for  removal  tiled  in  the  State  court  the  facts  relied 
on  as  the  basis  for  the  charge  that  the  joinder  of  a  sham  defend- 
ant has  been  made  for  the  fraudulent  purpose  of  defeating  thereby 
the  right  of  removal  to  the  Federal  Court,  the  State  court  is  en- 
abled to  determine  whether,  upon  the  face  of  the  record,  the  ease 
is  a  removable  one,  assuming  the  facts  alleged  to  be  true;  and 
by  filing  affidavits  in  support  of  the  facts  averred  in  the  petition 
for  removal  formal  evidence  is  submitted  for  the  consideration 
of  the  Federal  Court,  and,  if  the  facts  set  forth  in  the  affidavits 
are  deemed  sufficient,  no  further  evidence  need  be  submitted  un- 
less issue  is  taken  in  some  form  upon  the  allegations  of  fact,  when 
such  issue  will  stand  for  trial  in  the  Federal  Court  upon  the  evi- 
dence to  be  introduced  bj'  both  parties  thereon.  Treating  the 
present  motion  to  remand  as  being  intended  to  present  only  the 
legal  questions  arising  upon  the  face  of  the  record,  and  as  not 
]n'esenting  an  issue  of  fact  upon  the  allegations  of  the  petition  for 
removal,  the  same  is  overruled.^ 


FLOYT  v.  SriENANGO  FURNACE  CO. 

Circuit  Court,  I).  Minnesota,  Fifth  Division.     1911. 
186  Fed.  539. 

Amidon,  District  Judge. — This  cause  can^e  on  to  be  heard  upon 
the  motion  of  the  plaintiff  to  remand  the  case  to  the  State  court, 
and  was  heard  upon  the  complaint  and  the  petition  filed  by  the 
defendant  Shenango  Furnace  Company  for  the  removal  of  the 
cause  to  the  Bederal  Court, 

(1)  It  appears  from  tlic  complaint  that  tlie  defendant  Shen- 
ango   Furnace    Company,    a    foreign    corporation,    is   engaged   in 

1  Only   a   portion   of  thn   criso   is  rciirinteil. 

S(?c  also  CollinH  v.  Wellington,  31  Fed.  2U  (1887);  Nelson  v.  Hennessey, 
a.1  Fed.  ll.'J  (1HS7);  Arrowsniith  v.  Nashville  &  D.  R.  Co.,  T)?  Fed.  IGf),  170 
(189;?). 

A.H  (o  olTect  of  plaintiff 'h  motive  in  jcjiiiiny  parties,  see  Gustafson  v.  Clii- 
oaRo,   ]{.   I.  &  P.   l?y.  Co.,   128   Fed.   85,  87    (11)04). 

As  to  what  must  he  done  to  show  a  frauduh  iit  joinder  of  defendants,  see 
West  Kentucky  Coal  Co.  v.  Kev,  178  Ky.  2120.  22:?,  198  8.  W.  724,  725 
(1917)  ;  Warax  v.  Cincinnati,  N.  ().  &  T.  P.  Ky.  Co.,  72  Fed.  6:57,  640  (1896); 
Martin   v.  Matson   Nav.  Co.,  2;i9  Fed.   188,  190    (1917).— Ed. 


District  Courts  227 

operating  an  underground  mine,  and  in  connection  therewith  em- 
ployed what  is  known  as  a  "ladderway"  leading  from  one  level 
of  the  mine  to  another.  The  workmen  are  required  to  pass  over 
this  ladderway  in  the  performance  of  their  duty,  and  the  com- 
plaint charges  that  the  defendant  failed  to  perform  its  duty  to 
maintain  this  appliance  in  a  reasonably  safe  condition.  The  com- 
plaint further  charges  that  the  defendant  James  Hogdon  is  a 
citizen  of  the  same  State  as  the  plaintiff.  He  is  known  as  a  "min- 
ing captain,"  and  w^as  charged  with  the  supervision  of  the  mine 
and  the  workmen  engaged  therein,  and  that  it  was  also  his  duty  to 
see  that  the  appliances  used  in  the  mine  were  in  a  reasonably  safe 
condition.  The  only  negligence  charged  against  him  is  simply 
nonfeasance,  in  that  he  failed  to  perform  the  positive  duty  of  the 
master  to  properly  inspect  and  repair  the  ladderway.  Upon  well- 
established  principles  of  the  common  law,  Hogdon  was  not  liable 
to  third  parties  or  co-employes  for  nonfeasance.  For  that  he  is 
liable  only  to  his  emplo^'er.  Bryce  v.  Southern  Ry.  Co.  (C.  C), 
124  Fed.  959;  Mechem  on  Agency,  §§569,  573;  Greenberg  v. 
Whitcomb  Lumber  Co.,  90  Wis.  231,  63  N.  W.  93,  28  L.  R.  A. 
439,  48  Am.  St.  Rep.  911;  Murray  v.  Usher,  117  N.  Y.  542,  23 
N.  E.  564 ;  Drake  v.  Hagan,  108  Tenn.  265,  67  S.  W.  470. 

(2)  When  the  complaint  thus  discloses  upon  its  face  that  the 
plaintiff  has  no  cause  of  action  against  the  employe  who  is  made 
defendant,  the  cause  is  removable  by  the  other  defendant,  if  the 
proper  diversity  of  citizenship  exists  between  that  defendant  and 
the  plaintiff.  Marach  v.  Columbia  Box  Co.  (C.  C),  179  Fed.  412; 
Lockard  v.  St.  Louis  &  San  Francisco  R.  R.  Co.  (C.  C),  167  Fed. 
675;  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Stepp  (C.  C),  151  Fed.  908. 

The  case  of  Weeker  v.  National  Enameling  Co.,  204  U.  S.  176, 
27  Sup.  Ct.  184,  51  L.  Ed.  430,  settles  the  question,  that  has  for 
some  time  been  in  doubt,  that  when  an  employe  is  joined  by  the 
plaintiff'  as  co-defendant  with  the  employer,  and  it  is  made  to  ap- 
pear that  the  plaintiff'  in  fact  has  no  cause  of  action  against  such 
employe,  and  the  circumstances  are  such  that  the  plaintiff  must 
have  known  that  he  had  no  cause  of  action  when  he  made  him  a 
defendant,  and  that  such  employe  is  joined  as  a  defendant  solely 
for  the  purpose  of  defeating  the  right  of  the  other  defendant  to 
remove  the  cause  into  the  Federal  Court,  the  joinder  of  the  em- 
ploye is  then  fraudulent,  and  the  same  may  be  properly  removed 
by  the  other  defendant,  if  the  requisite  diversity  of  citizenship 
exists.  In  the  case  just  referred  to,  the  fact  that  the  plaintiff  had 
no  cause  of  action  against  the  employe  did  not  appear  on  the  face 
of  the  complaint,  but  was  disclosed  by  the  petition  and  by  affi- 


228  Cases  on  Federal  Procedure 

davits,  and  upon  the  showing  thus  made  it  was  held  that  the  fact 
that  the  plaintiff  had  no  cause  of  action  against  the  employe  justi- 
fied the  inference  that  his  joinder  as  a  defendant  was  fraudulent. 
To  the  objection  that  this  inference  ought  not  to  be  drawn,  the 
court  said  at  page  185  of  204  U.  S.,  at  page  188  of  27  Sup.  Ct. 
(51  L.  Ed.  430)  : 

"It  is  objected  that  there  was  no  proof  that  Wecker  knew  of 
Wettingel's  true  relation  to  the  defendant,  and  consequently  he 
could  not  be  guilty  of  fraud  in  joining  him ;  but  even  in  cases 
where  the  direct  issue  of  fraud  is  involved,  knowledge  maj'  be  im- 
puted Avhere  one  willfully  closes  his  eyes  to  information  within 
his  reach." 

If  a  showing  bj'  affidavit  that  the  plaintiff  has  no  cause  of  action 
as  against  the  employe  will  sustain  a  removal  by  the  other  defend- 
ant, surely  that  result  ought  to  follow  when  the  complaint  upon 
its  face  makes  the  same  disclosure.  There  can  be  no  higher  evi- 
dence that  the  joinder  is  fraudulent  than  the  fact  that  on  the  face 
of  the  complaint,  under  well-established  principles  of  law,  no  cause 
of  action  is  stated  against  the  emploj'e.  It  has  been  invariably 
held  that,  if  the  plaintiff  dismisses  his  action  as  to  the  employe, 
the  cause  maj^  then  be  removed  into  the  Federal  Court  by  the  other 
defendant ;  but  if  the  complaint  states  no  cause  of  action  against 
the  employe,  the  case  stands  the  same  as  it  would  upon  a  dismissal 
as  to  him.  Under  such  circumstances,  it  appears  upon  the  face  of 
the  pleading  that  there  is  only  a  single  controversy,  and  that  that 
controversy  is  wholly  between  the  plaintiff  and  the  other  defend- 
ant. Upon  such  a  record  it  would  seem  altogether  plain  that  the 
cause  is  removable  into  the  Federal  Court,  when  the  proper  diver- 
sity of  citizenship  exists  between  the  plaintiff  and  the  only  defend- 
ant as  to  whom  a  cause  of  action  is  stated. 

The  motion  to  remand  is  therefore  denied. 


MARTIN  V.  SNYDER. 

Supreme  Court  of  the  United  States.     1893. 

US  v.  S.  663,  13  8.  Ct.  706,  37  L.  Ed.  602. 

The  Ctfief  Jitstice  : — This  was  a  bill  of  complaini  filed  by  Samuel 
F.  Eiigs.  ficorgc  Engs  and  Henry  Snyder,  Jr.,  of  the  City,  County 
jijid  Stjilc  of  New  York,  againsi  Morris  T.  Martin  and  Carrie  E. 
.Martin,  in  ihc  Cin-nil  ('ourl  of  Tjako  County  in  the  State  of  Illi- 
nois, on  the  27th  of  October,  1887. 


District  Courts  229 

November  7,  1887,  the  defendants  preferred  a  petition  for  the 
lemoval  of  the  cause  to  the  United  States  Circuit  Court  within  and 
for  the  Northern  District  of  Illinois  on  the  ground  of  diverse  citi- 
zenship, and  the  ease  was  transferred  accordingly. 

The  petition  stated  "that  the  controversy  in  said  suit  is  between 
citizens  of  different  States,  and  that  the  petitioners  were  at  the 
time  of  the  commencement  of  this  suit  and  still  are  citizens  of  the 
State  of  Illinois,  and  that  all  the  plaintiffs  were  then  and  still  are 
citizens  of  the  State  of  New  York." 

Under  the  Act  of  Congress  of  March  3,  1887,  24  Stat.  552,  c. 
373,  it  is  the  defendant  or  defendants  who  are  non-residents  of  the 
State  in  which  the  action  is  pending,  who  may  remove  the  same 
into  the  Circuit  Court  of  the  United  States  for  the  proper  district. 
The  defendants  here  were  not  entitled  to  such  removal,  and  the 
decree,  which  was  in  favor  of  complainants  and  from  which  the 
defendants  prosecuted  this  appeal,  must  be  reversed  for  want  of 
jurisdiction,  with  costs  against  the  appellants,  and  the  case  re- 
manded to  the  Circuit  Court  with  directions  to  render  a  judgment 
against  them  for  costs  in  that  court,  and  to  remand  the  case  to  l^ie 
State  Court.    Torrence  v.  Shedd,  144  U.  S.  527,  533. 

Judgment  reversed  and  cause  remanded  accordingly.^ 

In  Gilson  v.  Mutual  Reserve  Fund  Life  Ass'n,  129  Fed.  1003 
(1904)  Evans,  District  Judge,  sitting  as  a  judge  of  the  Circuit 
Court,  said : 

"The  defendant,  alleging  itself  to  be  a  citizen  of  New  York,  and 
the  plaintiff  to  be  a  citizen  of  Kentucky,  removed  the  case  into 
this  court,  and  the  plaintiff  has  moved  to  remand  the  same  to  the 
State  Court.  By  the  judiciary  act  now  in  force,  it  was  competent 
for  the  defendant,  upon  the  ground  alleged,  to  remove  the  case  to 
this  court,  provided  the  amount  in  controversy,  exclusive  of  inter- 
est and  costs,  exceeded  the  sum  or  value  of  $2,000." 


FOSTER  V.  PARAGOULD  S.  E.  R.  CO. 

Circuit  Court,  E.  D.  Missouri,  E.  D.    1896. 

74  Fed.  273. 

Adams,  District  Judge. — The  question  raised  by  the  present  mo- 
tion is  whether  it  is  necessary  for  the  record  and  papers  in  the 

1  As  to  the  right  of  resident  alien   defendants  to  remove,   see  Walker   v. 

O'Neill,    38    Fed.    374    (1889).      But    see    Attleboro    Mfg.    Co.    v.  Frankfort 

Marine,   Accident   &   Plate   (Tlass   Inc.    Co.,   202   Fed,    293    (1913).  Compare 
Rones  v.  Katalla  Co.,  182  Fed.  946   (1910). 


230  Cases  on  Federal  Procedure 

case  to  show  that  there  was  a  diversity  of  citizenship  of  the  parties 
within  the  meaning  of  the  act  relating  to  the  removal  of  causes, 
both  at  the  time  the  petition  for  removal  was  filed  in  the  State 
Court  and  at  the  time  the  suit  was  commenced  in  the  State  Court, 
or  whether  it  is  sufficient  if  such  diversity  existed  at  the  time  the 
petition  for  removal  was  filed.  The  papers  in  the  case  show  that  the 
plaintiff,  at  the  time  the  motion  to  remove  was  filed  in  the  State 
Court,  was  a  citizen  of  the  State  of  Missouri,  and  that  the  defend- 
ant, at  the  time  the  motion  to  remove  was  filed,  and  also  at  the  time 
the  suit  was  instituted,  was  a  citizen  of  the  State  of  Arkansas.  It 
does  not  appear,  and  cannot  be  ascertained  from  the  record  and 
papers  in  the  case,  whether  the  plaintiff  was,  at  the  time  of  the 
institution  of  his  suit,  a  citizen  of  a  different  State  than  Arkansas. 
This  being  a  court  of  prescribed  jurisdiction,  the  facts  disclos- 
ing the  same  must  affirmatively  appear.  The  question  therefore 
is:  Is  the  fact  that  the  record  and  papers  fail  to  disclose  the 
requisite  citizenship  at  the  time  the  suit  was  instituted  in  the 
State  Court  fatal  to  the  jurisdiction  of  this  court  ?  The  Judiciary 
Act  of  March  3,  1875,  employs  the  same  phraseology  with  respect 
to  diverse  citizenship  of  the  parties  in  connection  with  the  right 
of  removal  as  is  found  in  the  Act  of  March  3,  1887,  now  in  force. 
The  first-mentioned  act  received  construction,  in  the  particulars 
now  under  consideration,  by  the  Supreme  Court  of  the  United 
States  in  the  cases  of  Gibson  v.  Bruce,  108  U.  S.  561,  2  Sup.  Ct. 
873,  Railway  Co.  v.  Shirley,  111  U.  S.  358,  4  Sup.  Ct.  472,  and 
Akers  v.  Akcrs,  117  U.  S.  197,  6  Sup.  Ct.  669 ;  and  in  them  it  was 
held  that  a  suit  cannot  be  removed  unless  the  requisite  citizenship 
of  the  parties  exists,  both  when  the  suit  was  begun  and  when  the 
petition  for  removal  was  filed.  The  doctrine  of  these  decisions 
controls  the  court  in  its  action  on  the  present  motion.  The  mo- 
tion is  sustained.^ 


In  re  MOORE. 

Supreme  Court  of  the  United  States.     1908. 

209  U.  S.  490,  28  S.  Ct.  585,  52  L.  Ed.  904,  14  Ann.  Cos.  1164. 

This  is  an  application  by  petitioner  for  a  writ  of  mandamus  to 
(•(ijii[)cl  the  Circuit  Court  of  the  United  States  for  the  Eastern 

1  (.'omjmrc   Curtin   v.  Decker,  5   Fed.   .'?85    (1881),   wliich   is   based   upon   the 
;,rt   of  Mar.  3,  1875.— Ed. 


District  Courts  231 

Division  of  the  Eastern  Judicial  District  of  Missouri  to  remand 
the  case  of  this  petitioner  v.  The  Louisville  &  Nashville  Railroad 
Company  to  the  State  Court,  from  whence  it  came. 

The  facts  are  these:  On  November  16,  1906,  Albert  Newton 
Moore,  an  infant,  over  the  age  of  fourteen  years,  presented  his 
petition  to  the  Circuit  Court  of  the  City  of  St.  Louis,  Missouri, 
stating  that  he  desired  to  institute  a  suit  in  that  court  against  the 
Louisville  and  Nashville  Railroad  Company,  and  praying  for  the 
appointment  of  a  next  friend,  whereupon  George  Safford,  of  St. 
Louis,  was  duly  appointed  such  next  friend.  Thereupon  a  peti- 
tion was  filed  in  said  State  Court  in  the  name  of  Moore,  by  his 
next  friend,  against  the  Louisville  and  Nashville  Railroad  Com- 
pany, to  recover  damages  for  personal  injuries.  After  service  of 
summons,  but  before  answer  was  due,  the  railroad  company  filed 
its  application  for  removal  to  the  Circuit  Court  of  the  United 
States  for  the  Eastern  Division  of  the  Eastern  Judicial  District  of 
Missouri.  This  application  for  removal  was  based  on  the  ground 
of  diverse  citizenship,  and  alleged  that  the  plaintiff  Moore  was 
a  citizen  and  resident  of  the  State  of  Illinois;  that  Safford,  the 
next  friend,  was  a  resident  and  citizen  of  the  State  of  Missouri, 
and  the  defendant,  a  corporation  created  and  existing  under  the 
laws  of  the  State  of  Kentucky  and  a  citizen  and  resident  of  that 
State.  The  petition  and  bond  were  in  due  form,  and  the  case  was 
transferred  to  the  United  States  Circuit  Court.  Thereafter,  and 
on  March  22,  1907,  the  plaintiff  filed  in  that  court  an  amended 
petition.  On  March  25,  by  stipulation  of  the  parties,  the  defend- 
ant was  given  time  to  plead  to  the  plaintiff's  amended  petition. 
Three  or  four  times  thereafter  stipulations  for  continuances  were 
entered  into  by  the  counsel  for  both  sides.  At  the  September 
term,  1907,  a  motion  to  remand,  made  by  plaintiff,  M'as  overruled. 
Thereupon  this  application  for  mandamus  was  presented.    *    *    * 

Mr.  Justice  Brewer,  after  making  the  foregoing  statement, 
delivered  the  opinion  of  the  court. 

It  was  held  in  ex  parte  Wisner,  203  U.  S.  449,  that ; 

"Under  sections  1,  2,  3  of  the  Act  of  March  3,  1875,  18  Stat. 
470,  as  amended  by  the  Act  of  March  1,  1887,  24  Stat.  552,  cor- 
rected by  the  Act  of  August  13,  1888,  25  Stat.  433,  an  action  com- 
menced in  a  State  Court,  by  a  citizen  of  another  State,  against  a 
non-resident  defendant,  who  is  a  citizen  of  a  State  other  than  that 


232  Cases  on  Federal  Procedure 

of  the  plaintiff,  cannot  be  removed  by  the  defendant  into  the  Cir- 
cuit Court  of  the  United  States." 

On  the  authority  of  this  case  it  is  contended  by  petitioner  that 
as  in  this  action  none  of  the  parties  were  citizens  of  the  State  of 
Missouri,  it  could  not  be  removed  by  the  defendant  into  the  Circuit 
Court  of  the  United  States,  and  that  upon  the  failure  of  the  United 
States  Circuit  Court  to  remand  the  case  to  the  State  Court  in 
which  it  was  originally  brought  mandamus  from  this  court  is  an 
appropriate  remedy.  But  in  that  case  the  plaintiff  never  con- 
sented to  accept  the  jurisdiction  of  the  United  States  Court,  while 
in  this  case  it  is  contended  that  both  parties  did  so  consent,  and 
that  therefore  the  decision  in  that  ease  is  not  controlling. 

This  brings  up  two  questions,  first,  whether  both  parties  did 
consent  to  accept  the  jurisdiction  of  the  United  States  Court; 
and,  second,  if  they  did,  what  effect  such  consent  had  upon  the 
jurisdiction  of  the  United  States  Court. 

That  the  defendant  consented  to  accept  the  jurisdiction  of  the 
United  States  Court  is  obvious.  It  filed  a  petition  for  removal 
from  the  State  of  the  United  States  Court.  No  clearer  expression 
of  its  acceptance  of  the  jurisdiction  of  the  latter  court  could  be 
had.  After  the  removal  the  plaintiff,  instead  of  challenging  the 
jurisdiction  of  the  United  States  Court  by  a  motion  to  remand, 
filed  an  amended  petition  in  that  court,  signed  a  stipulation  giving 
time  to  the  defendant  to  answer;  and  then  both  parties  entered 
into  successive  stipulations  for  a  continuance  of  the  trial  in  that 
court.  Thereby  the  plaintiff  consented  to  accept  the  jurisdiction 
of  the  United  States  Court,  and  was  willing  that  his  controversy 
with  the  defendant  should  be  settled  by  a  trial  in  that  court.  The 
mere  filing  of  an  amended  petition  was  an  appeal  to  that  court 
for  a  trial  upon  the  facts  averred  by  him  as  they  might  be  con- 
troverted by  the  defendant.  And  this,  as  we  have  seen,  was  fol- 
lowed by  repeated  recognitions  of  the  jurisdiction  of  that  court. 
*     *     « 

Turning  now  to  the  other  question,  the  Constitution,  Art.  Ill, 
§  2,  provides  that  the  judicial  power  of  the  United  States  shall 
f'xtcnd  to  controversies  "between  citizens  of  different  States." 
Section  11  of  the  Judiciary  Act  of  1789  (1  Stat.  78)  granted  to 
the  Circuit  courts  original  cognizance  "of  all  suits  of  a  civil  nature 
at  common  .law  or  in  equity  *  *  *  where  the  suit  is  between 
a  citizen  of  the  State  where  the  suit  is  brought,  and  a  citizen  of 
another  State,"  and  added:  "And  no  civil  suit  shall  be  brought 


District  Courts  233 

before  either  of  said  courts  (Circuit  or  District)  against  an  inhabi- 
tant of  the  United  States,  by  any  original  process  in  any  other 
district  than  that  whereof  he  is  an  inhabitant,  or  in  which  he  shall 
be  found  at  the  time  of  serving  the  writ."  Section  12  (p.  79) 
provided ''that  if  a  suit  be  commenced  in  any  State  Court  *  *  * 
by  a  citizen  of  the  State  in  which  the  suit  is  brought  against  a 
citizen  of  another  State,"  a  removal  might  be  had  of  the  case  to 
the  next  Circuit  Court  to  be  held  in  the  district  where  the  suit 
is  pending.  The  first  section  of  the  Act  of  August  13,  1888,  c. 
866,  25  Stat.  433,  like  the  Judiciary  Act,  invested  the  Circuit 
courts  of  the  United  States  with  original  cognizance  of  suits  in 
which  there  is  a  controversy  between  citizens  of  different  States, 
provided  that  no  civil  suit  should  be  brought  before  either  of  said 
courts  (Circuit  or  District)  against  any  person  by  any  original 
process  or  proceeding  in  any  other  district  than  that  whereof  he 
is  an  inhabitant,  and  closed  with  these  words,  "but  where  the 
jurisdiction  is  founded  only  on  the  fact  that  the  action  is  between 
citizens  of  different  States,  suit  shall  be  brought  only  in  the  dis- 
trict of  the  resident  of  either  the  plaintiff  or  the  defendant."  The 
second  sentence  of  §  2  prescribed,  in  respect  to  removals,  that 
"any  other  suit  of  a  civil  nature,  at  law  or  in  equity,  of  which 
the  Circuit  courts  of  the  United  States  are  given  jurisdiction  by 
the  preceding  section,  and  which  are  now  pending,  or  which  may 
hereafter  be  brought,  in  any  State  Court,  may  be  removed  into 
the  Circuit  courts  of  the  United  States  for  the  proper  district  by 
the  defendant  or  defendants  therein,  being  non-residents  of  that 
State."  It  will  thus  be  seen  that  by  both  the  Act  of  1789  and 
that  of  1888  there  is  a  general  grant  to  Circuit  courts  of  jurisdic- 
tion over  controversies  between  citizens  of  different  States,  and 
in  each  of  them  there  is  a  limitation  as  to  the  district  in  which 
the  action  must  be  brought.  In  the  light  of  this  similarity  be- 
tween these  two  acts  must  the  second  question  be  considered. 

The  contention  is  that  as  this  action  could  not  have  been  orig- 
inally brought  in  the  Circuit  Court  for  the  Eastern  District  of 
Missouri  by  reason  of  the  last  provision  quoted  from  §  1,  it  cannot 
under  §  2  be  removed  to  that  court,  as  the  authorized  removal  is 
only  of  those  cases  of  which  by  the  prior  section  original  juris- 
diction is  given  to  the  United  States  Circuit  courts.  But  this 
ignores  the  distinction  between  the  general  description  of  the 
jurisdiction  of  the  United  States  courts  and  the  clause  naming  the 
particular  district  in  which  an  action  must  be  brought. 


234  .         Cases  on  Federal  Procedure 

It  may  be  well  to  examine  the  authorities  touching  this  matter. 
In  Gracie  v.  Palmer,  8  Wheat.  699,  the  court,  by  Mr.  Chief  Justice 
Marshall,  held  that: 

''The  exemption  from  arrest  in  a  district  in  which  the  defend- 
ant was  not  an  inhabitant,  or  in  which  he  was  not  found  at  the 
time  of  serving  the  process,  was  the  privilege  of  the  defendant, 
which  he  might  waive  by  a  voluntary  appearance. ' ' 

In  Toland  v.  Sprague,  12  Pet.  300,  330,  Mr.  Justice  Barbour 
thus  stated  the  rule : 

"Now,  if  the  case  were  one  of  a  want  of  jurisdiction  in  the 
court,  it  would  not,  according  to  well-established  principles,  be 
competent  for  the  parties,  by  any  act  of  theirs,  to  give  it.  But 
this  is  not  the  case.  The  court  had  jurisdiction  over  the  parties 
and  the  matter  in  dispute ;  the  objection  was,  that  the  party  de- 
fendant, not  being  an  inhabitant  of  Pennsylvania,  nor  found 
therein,  personal  process  could  not  reach  him ;  and  that  the  process 
of  attachment  could  only  be  properly  issued  against  a  party  under 
circumstances  which  subjected  him  to  process  in  personam.  Now 
this  was  a  personal  privilege  or  exemption,  which  it  was  compe- 
tent for  the  party  to  waive.  Pollard  v.  Dwight,  4  Cranch  421; 
Barry  v.  Foyles,  1  Pet.  311."     *     *     * 

Without  multiplying  authorities  on  this  question,  it  is  obvious 

that  the  party  who  in  the  first  instance  appears  and  pleads  to  the 

merits  waives  any  right  to  challenge  thereafter  the  jurisdiction  of 

the  court  on  the  ground  that  the  suit  had  been  brought  in  the 

wrong  district.     Charlotte  Nat.  Bank  v.  Morgan,  132  U.  S.  141; 

Fitzgerald  Construction  Company  v.  Fitzgerald,  137  U.  S.  98." 
*     *     « 

Several  other  cases  in  this  court,  as  well  as  many  in  the  Circuit 
courts  and  Circuit  Courts  of  Appeal,  might  be  noticed,  in  which  a 
similar  ruling  as  to  the  effect  of  a  waiver  was  announced.  It  is 
true  that  in  most  of  the  cases  the  waiver  was  by  the  defendant, 
but  the  reasoning  by  which  a  defendant  is  precluded  by  a  waiver 
from  insisting  upon  any  objection  to  the  particular  United  States 
Court  in  which  the  action  was  brought  compels  the  same  conclu- 
sion as  to  the  effect  of  a  waiver  by  the  plaintiff  of  his  right  to 
challenge  that  jurisdiction  in  case  of  a  removal.  As  held  in  Kin- 
ney v.  Columbia  Saving  &  Loan  Association,  191  U.  S.  78,  a  peti- 
tion and  bond  for  removal  are  in  the  nature  of  process.  They 
coiiRlitute  the  process  by  which  the  case  is  transferred  from  the 
State  to  the  Federal  Court,  and  if  when  the  defendant  is  brought 


District  Courts  235 

into  a  Federal  Court  by  the  service  of  original  process  he  can 
waive  the  objection  to  the  particular  court  in  which  the  suit  is 
brought,  clearly  the  plaintiff,  when  brought  into  the  Federal  Court 
by  the  process  of  removal,  may  in  like  manner  waive  his  objection 
to  that  court.  So  long  as  diverse  citizenship  exists  the  Circuit 
courts  of  the  United  States  have  a  general  jurisdiction.  That 
jurisdiction  may  be  invoked  in  an  action  originally  brought  in  a 
Circuit  Court  or  one  subsequently  removed  from  a  State  Court, 
and  if  any  objection  arises  to  the  particular  court  which  does  not 
run  to  the  Circuit  Court  as  a  class  that  objection  may  be  waived 
by  the  party  entitled  to  make  it.  As  we  have  seen  in  this  case, 
the  defendant  applied  for  a  removal  of  the  case  to  the  Federal 
Court.  Thereby  he  is  foreclosed  from  objecting  to  its  jurisdiction. 
In  like  manner,  after  the  removal  had  been  ordered,  the  plaintiff 
elected  to  remain  in  that  court,  and  he  is,  equally  with  the  defend- 
ant, precluded  from  making  objection  to  its  jurisdiction.  *  *  * 
The  jurisdiction  of  the  Circuit  Court  of  the  United  States  for 
the  Eas<-ern  Division  of  the  Eastern  District  of  Missouri  was 
settled  by  the  proceedings  had  by  the  two  parties,  and  the  appli- 
cation for  a  writ  of  mandamus  is 

Denied} 

HYDE  V.  RUBLE. 

Supreme  Court  of  the  United  States.     1881. 
104  U.  S.  407,  26  L.  Ed.  823. 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

This  was  a  suit  begun  by  Ruble  and  Green,  on  the  6th  of  March, 
1880,  in  a  State  Court  of  Minnesota,  upon  an  alleged  contract  of 
bailment  made  by  the  defendants  as  partners.  The  amount  in- 
volved was  a  little  more  than  $500.  The  plaintiffs  were  citizens 
of  Minnesota.  Only  one  defendant,  Rowell,  was  a  citizen  of  that 
State.  The  business  of  the  alleged  partnership  was  carried  on 
there.  He  filed  a  separate  answer  to  the  complaint,  in  which  he 
denied  the  existence  of  any  partnership  between  himself  and  the 
other  defendants,  and  set  up  a  full  performance  of  the  contract 

1  The  dissenting  opinion  of  the  chief  justice,  and  portions  of  the  opinion 
of  Mr.   Justice  Brewer   are   omitted. — Ed. 


236  Cases  on  Federal  Procedure 

on  his  part.  The  other  defendants  joined  in  a  separate  answer 
for  themselves,  in  which  they  denied  any  partnership  with  him, 
and  any  contract  between  themselves  and  the  plaintiffs.  They 
also  denied  generally  all  the  allegations  of  the  complaint. 

On  the  12th  of  April,  1880,  after  these  answers  were  in,  all  the 
defendants,  including  Eowell,  filed  in  the  State  Court  a  petition 
for  the  removal  of  the  suit  to  the  Circuit  Court  of  the  United 
States  for  the  District  of  Minnesota,  on  the  ground  of  the  citizen- 
ship of  the  parties.  At  the  next  term  of  the  Circuit  Court  the 
cause  was  remanded  to  the  State  Court.  This  order  was  entered 
in  the  Circuit  Court  July  31,  1880,  and  a  copy  thereof  filed  in  the 
State  Court  on  the  11th  of  August.  On  the  12th  of  January,  1881, 
at  a  term  of  the  State  Court  which  began  on  the  10th  of  that 
month,  another  petition  was  filed,  b}'  all  the  defendants  who  were 
not  citizens  of  Minnesota,  for  a  removal  of  the  suit,  as  to  them- 
selves, on  the  ground  that  there  could  be  a  final  determination  of 
the  controversy-,  so  far  as  it  concerned  them,  without  the  presence 
of  Rowell  as  a  party.  It  is  not  contended  that  this  petition  was 
filed  in  time  to  effect  a  removal  under  the  second  clause  of  the 
second  section  of  the  Act  of  March  3,  1875,  c.  137  (18  Stat.,  pt.  3, 
p.  470)  ;  but  the  State  Court  ordered  a  removal,  so  far  as  con- 
cerned the  petitioning  defendants,  leaving  the  suit  to  proceed  in 
that  court  as  to  Rowell.  When  the  case  was  docketed  in  the  Cir- 
cuit Court  under  this  second  removal  it  was  again  remanded.  To 
reverse  these  several  orders  of  the  Circuit  Court  this  writ  of  error 
has  been  brought  by  the  defendants. 

This  action  is  clearly  one  sounding  in  contract  and  not  in  tort. 
According  to  the  allegations  of  the  complaint  the  plaintiffs  stored, 
at  an  agreed  rate,  their  wheat  with  the  defendants,  who  undertook 
to  buy  it  and  pay  for  it  at  the  market  price  whenever  the  plaintiffs 
wanted  to  sell.  The  action  is  brought  to  recover  what  is  alleged 
to  be  due  on  the  price  according  to  the  terms  of  this  contract.  All 
the  allegations  of  wrongful  conversion  are  immaterial,  and  in  no 
way  change  the  character  of  the  suit. 

The  suit,  then,  as  it  stands  on  the  complaint,  is  in  respect  to 
a  controver.sy  between  the  parties  as  to  the  liability  of  the  defend- 
ants on  a  single  contract.  Our  ground  of  defense  is,  that  there 
was  no  partncrsliip  between  the  defendants,  and  that  Rowell  alone 
was  bound  by  the  contract  that  was  made;  and  another,  that  the 
conlracf,  by  wliomsoover  made,  liad  l)ccn  fully  performed.  Clearly, 
then,  under  our  rulings  in  Removal  Cases  (100  U.  S.  457)  and 
I'>l.'ike  V.  I\IfKim  (103  id.  336)  the  case  was  not  removable  under 


District  Courts  237 

the  first  clause  of  the  second  section  of  the  Act  of  1875,  because 
all  the  parties  on  one  side  of  the  controversy  were  not  citizens  of 
different  States  from  those  on  the  other. 

Neither  do  we  think  it  was  removable  under  the  second  clause 
of  the  same  section,  on  the  ground  that  there  was  in  the  suit  a 
separate  controversy  wholly  between  citizens  of  different  States. 
To  entitle  a  party  to  a  removal  under  this  clause  there  must  exist 
in  the  suit  a  separate  and  distinct  cause  of  action  in  respect  to 
which  all  the  necessary  parties  on  one  side  are  citizens  of  different 
States  from  those  on  the  other.  Thus,  in  Barney  v.  Latham  (103 
id.  205),  two  separate  and  distinct  controversies  were  directly  in- 
volved :  one  as  to  the  lands  held  by  the  Winona  &  St.  Peter  Land 
Company,  in  respect  to  which  the  land  company  was  the  only 
necessary  party  on  one  side,  and  the  plaintiff  on  the  other;  and 
the  second  as  to  the  moneys  collected  from  the  sales  of  lands  before 
the  land  company  was  formed,  and  as  to  which  only  the  natural 
persons  named  as  defendants  were  the  necessary  party  on  one 
side  and  the  plaintiffs  on  the  other.  One  was  a  controversy  about 
land,  and  the  other  about  the  money.  Separate  suits,  each  distinct 
in  itself,  might  have  been  properly  brought  on  these  two  separate 
causes  of  action,  and  complete  relief  afforded  in  each  suit  as  to 
the  particular  controversy  involved.  In  that  about  the  land,  the 
land  company  would  have  been  the  only  necessary  defendant ;  and 
in  that  about  the  money,  the  natural  persons  need  only  have  been 
brought  in.  In  that  about  the  laud  there  could  not  have  been  a 
removal,  because  the  parties  on  both  sides  would  have  been  citizens 
of  the  same  State ;  while  in  that  about  the  money  there  could  have 
been,  as  the  plaintiffs  would  all  be  citizens  of  one  State,  while  the 
defendants  would  all  be  citizens  of  another.  When  two  such  causes 
of  action  are  found  united  in  one  suit,  we  held  in  the  case  last 
cited  there  could  be  a  removal  of  the  whole  suit  on  the  petition  of 
one  or  more  of  the  plaintiffs  or  defendants  interested  in  the  con- 
troversy, which,  if  it  had  been  sued  on  alone,  would  be  removable. 
But  that,  we  think,  does  not  meet  the  requirements  of  this  case. 
This  suit  presents  but  a  single  cause  of  action,  that  is  to  say,  a 
single  controversy.  The  issues  made  by  the  pleadings  do  not 
create  separate  controversies,  but  only  show  the  questions  which 
are  in  dispute  between  the  parties  as  to  their  one  controversy.^ 

1  An  extended  list  of  cases  dealing  with  separable  controversies  to  be 
found  in  2  Foster  Federal  Practice  (5th  Ed.)  pp.  1792-1806. 

See  also  Plunkett  v.  Oulf  Refining  Co.,  259  Fed.  968,  971-974  (1919); 
Morgan  v.   Hines,   260   Fed.   585    (1919).— Ed. 


238  Cases  on  Federal  Procedure 

CHICAGO,  ROCK  ISLAND  &  PACIFIC  RY.  CO.  v.  MARTIN. 

Supreme  Court  of  the  United  States.     1900. 
178  V.  S.  245,  20  S.  Ct.  854,  44  L.  Ed.  1055. 

This  was  an  action  brought  by  Lissa  Martin  as  administratrix 
of  William  Martin,  deceased,  against  the  Chicago,  Rock  Island  and 
Pacific  Railroad  Company,  and  Clark  and  others,  receivers  of  the 
Union  Pacific  Railway  Company,  in  the  District  Court  of  Clay 
County,  Kansas,  to  recover  damages  for  the  death  of  the  decedent. 
Plaintiff's  petition  was  filed  Januarj^  26,  1894,  and  on  February 
14,  1894,  the  Chicago,  Rock  Island  and  Pacific  Railroad  Company 
filed  its  separate  answer  thereto.  February  20,  1894,  defendants 
Clark  and  others,  as  receivers,  presented  their  petition  and  bond, 
praying  for  the  removal  of  the  cause  to  the  United  States  Circuit 
Court  for  the  District  of  Kansas,  on  the  ground  that  the  ease  arose 
under  the  Constitution  and  laws  of  the  United  States,  which  appli- 
cation was  overruled  by  the  District  Court,  and  the  receivers  duly 
excepted.  The  cause  was  tried,  the  jury  returned  a  verdict  in 
favor  of  plaintiff  and  against  all  the  defendants,  and  judgment 
was  entered  thereon.  The  cause  was  taken  on  error  to  the  Supreme 
Court  of  Kansas  by  the  defendants,  and  the  judgment  was  by  that 
court  affirmed.    59  Kansas  437. 

The  refusal  of  the  State  Court  to  remove  the  cause  to  the  Circuit 
Court  of  the  United  States  on  the  application  of  the  receivers  was 
relied  on  as  error  throughout  the  proceedings,  and  the  Supreme 
Court  of  Kansas  held,  among  other  things,  tliat  the  application 
for  removal  was  properly  denied  because  all  the  defendants  were 
charged  with  jointly  causing  the  death  of  plaintiff' 's  intestate,  and 
all  did  not  join  in  the  petition  for  removal. 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the  court. 

Assuming  that  as  to  the  receivers  the  case  may  be  said  to  have 
arisen  under  the  Constitution  and  laws  of  the  United  States,  the 
question  is  whether  it  was  necessary  for  the  Chicago,  Rock  Island 
and  Pacific  Railroad  Company,  defciuhml,  to  join  in  the  applica- 
tion of  its  co-defendants,  the  receivers  of  the  Union  Pacific  Rail- 
way Company,  to  efl'ect  a  removal  to  the  Circuit  Court. 

The  Rock  Ishmd  C()ni|);iny  was  not  a  corporation  of  Kansas, 
and  all  the  receivers  of  the  Union  Pacific  Railroad  Company  were 
citizens  of  .some  other  Slate  than  tlie  State  of  Kansas.  But  the 
receiver.s  applied  for  removal,  after  the  l{ock  Ishuui  Company  had 
answered,  on  the  ground  that  the  suit  was,  as  to  them,  "one  aris- 


District  Courts  239 

ing  under  the  laws  of  the  United  States,"  in  that  they  were  ap- 
pointed receivers  by  the  Circuit  Court  of  the  United  States  for 
the  Districts  of  Nebraska  and  Kansas,  to  take  charge  of  and  to 
operate,  a  corporation  created  by  the  consolidation,  under  acts 
of  Congress,  of  a  corporation  of  the  United  States,  a  corporation 
of  Kansas  and  a  corporation  of  Colorado. 

The  Act  of  March  3,  1887,  as  corrected  by  the  Act  of  August  13, 
1888,  25  Stat.  433,  c.  866,  2,  provides: 

"That  any  suit  of  a  civil  nature,  at  law  or  in  equity,  arising 
under  the  Constitution  or  laws  of  the  United  States,  or  treaties 
made,  or  which  shall  be  made,  under  their  authority,  of  which  the 
Circuit  courts  of  the  United  States  are  given  original  jurisdiction 
by  the  preceding  section,  which  may  now  be  pending,  or  which 
may  hereafter  be  brought,  in  any  State  Court,  may  be  removed  by 
the  defendant  or  defendants  therein  to  the  Circuit  courts  of  the 
United  States  for  the  proper  district.  Any  other  suit  of  a  civil 
nature,  at  law  or  in  equity,  of  which  the  Circuit  courts  of  the  United 
States  are  given  jurisdiction  by  the  preceding  section,  and  which 
are  now  pending,  or  which  may  hereafter  be  brought,  in  any  State 
Court,  may  be  removed  into  the  Circuit  Court  of  the  United  States 
for  the  proper  district  by  the  defendant  or  defendants  therein, 
being  non-residents  of  that  State.  And  when  in  any  suit  men- 
tioned in  this  section  there  shall  be  a  controversy  which  is  wholly 
between  citizens  of  different  States,  and  which  can  be  fully  deter- 
mined as  between  them,  then  either  one  or  more  of  the  defendants 
actually  interested  in  such  controversy  may  remove  said  suit  into 
the  Circuit  Court  of  the  United  States  for  the  proper  district. 
And  "^vhere  a  suit  is  now  pending,  or  may  be  hereafter  •  brought, 
in  any  State  Court,  in  which  there  is  a  controversy  between  a 
citizen  of  the  State  in  which  the  suit  is  brought  and  a  citizen  of 
another  State,  any  defendant,  being  such  citizen  of  another  State, 
may  remove  such  suit  into  the  Circuit  Court  of  the  United  States 
for  the  proper  district,  at  any  time  before  the  trial  thereof,  when 
it  shall  be  made  to  appear  to  said  Circuit  Court  that  from  preju- 
dice or  local  influence  he  will  not  be  able  to  obtain  justice  in  such 
State  Court     *     *     *." 

It  thus  appears  on  the  face  of  the  statute  that  if  a  suit  arises 
under  the  Constitution  or  laws  of  the  United  States,  or  if  it  is  a 
suit  between  citizens  of  different  States,  the  defendant,  if  there 
be  but  one,  may  remove,  or  the  defendants,  if  there  be  more  than 
one ;  but  where  the  suit  is  between  citizens  of  different  States  and 
there  is  a  separable  controversy,  then  either  one  or  more  of  the 
defendants  may  remove. 


240  Cases  on  Federal  Procedure 

Under  the  first  clause  of  section  2  of  the  Act  of  1875,  18  Stat. 
470,  c.  137,  which  applied  to  ''either  party,"  but  in  its  re-enact- 
ment in  the  second  clause  of  section  2  of  the  Act  of  1887,  above 
quoted,  is  confined  to  the  defendant  or  defendants,  it  was  well 
settled  that  a  removal  could  not  be  effected  unless  all  the  parties 
on  the  same  side  of  the  controversy  united  in  the  petition ;  and 
so  as  to  the  second  clause  of  the  second  section  of  the  Act  of  1875, 
which  corresponds  with  the  third  clause  of  the  second  section  of 
the  Act  of  1887,  it  was  held  that  that  clause  only  applied  where 
there  were  two  or  more  controversies  in  the  same  suit,  one  of 
which  was  wholly  between  citizens  of  different  States.  Hanrick  v. 
Haurick,  153  U.  S.  192,  and  cases  cited;  Torrence  v.  Shedd,  144 
U.  S.  527,  and  cases  cited.  In  the  latter  case,  Mr.  Justice  Gray 
said:  "As  this  court  has  repeatedly  affirmed,  not  only  in  cases  of 
joint  contracts,  but  in  actions  for  torts,  which  might  have  been 
brought  against  all  or  against  any  one  of  the  defendants,  'separate 
answers  by  the  several  defendants  sued  on  joint  causes  of  action 
may  present  different  questions  for  determination,  but  they  do 
not  necessarily  divide  the  suit  into  separate  conti'oversies.  A  de- 
fendant has  no  right  to  say  that  an  action  shall  be  several  which 
a  plaintiff  elects  to  make  joint.  A  separate  defense  may  defeat  a 
joint  recovery,  but  it  cannot  deprive  a  plaintiff  of  his  right  to 
prosecute  his  own  suit  to  final  determination  in  his  own  Vvaj'.  The 
cause  of  action  is  the  subject-matter  of  the  controversy^  and  that 
is  for  all  the  purposes  of  the  suit,  whatever  the  plaintiff  declares 
it  to  be  in  his  pleadings.'  "  And  see  "Whitcomb  v.  Smithson,  175 
U.  S.  635.1 


THURBER  v.  MILLER. 

Circuit  Court  of  Appeals,  Eighth  Circuit.     1895. 

67  Fed.  371,  14  C.  C.  A.  432. 

Caldwell,  Circuit  Judge,  delivered  the  opinion  of  the  court. 

Tlif re  is  another  fact  disclosed  by  the  record  equally  fatal  to  the 
jurisdiction  of  the  Circuit  Court.     The  plaintiff  in  the  action  is  a 

1  kx\  .analysis  of  portain  cases  is  omittod. 

As  to  tho  necessity  of  nominal  dofondants  joining  in  a  removal  petition, 
see  Shattuck  v.  North  Britisli  &  Mercantile  Ins.  Co.,  .IH  Fed.  (509,  t509-610. 
7  C.  C.  A.  3«fi,  :?«7-:»ft«  (181t3). 

As  to  the  effect  of  the  joinder  of  iinnece.ssary  parties  in  a  roiiioval  petition, 
NCC   Snow   V.    Smith,  HH    ?\'d.    (i.!?,   (mO    (1S82).— Ed. 


District  Courts  241 

citizen  of  New  York,  and  the  defendant  Evans,  on  whose  petition 
the  suit  was  removed  from  the  State  to  the  Circuit  Court,  is  a 
citizen  of  South  Dakota, — the  State  in  which  the  suit  was  brought. 
The  removal  of  suits  upon  the  ground  that  they  involve  separate 
controversies  was  first  provided  for  by  the  Act  of  July  27,  1866 
(14  Stat.  306,  e.  288).  That  act  gave  the  right  of  removal  to  "the 
defendant  who  is  a  citizen  of  a  State  other  than  that  in  which  the 
suit  is  brought."  The  provision  of  the  Act  of  1866,  that  the  de- 
fendant authorized  to  remove  a  suit  upon  the  ground  of  a  separable 
controversy  must  be  a  citizen  of  a  State  other  than  that  in  which 
the  suit  was  pending,  was  in  harmony  with  the  rule  that  had 
always  obtained  with  reference  to  the  citizenship  of  a  defendant 
in  removing  a  cause  from  a  State  to  a  Federal  Court.  Under  the 
Judiciary  Act  of  1789  (1  Stat.  73,  c.  20,  §  12),  a  defendant  sued 
in  a  court  of  his  own  State  by  a  citizen  of  another  State  could  not 
remove  the  suit.  It  was  only  when  the  defendant  was  sued  in  the 
courts  of  a  State  of  which  he  was  not  a  citizen  that  he  could  re- 
move the  suit  to  the  Circuit  Court.  Under  the  Act  of  March  2, 
1867  (14  Stat.  558,  c.  196),  which  first  gave  the  right  of  removal 
on  the  ground  of  prejudice  or  local  influence,  the  right  was  con- 
fined to  "such  citizen  of  another  State,  whether  he  be  plaintiff  or 
defendant."  The  provisions  of  these  acts  restricting  the  right  of 
removal  to  the  party  who  is  a  citizen  of  a  State  other  than  that  in 
which  the  suit  is  brought  were  re-enacted  and  carried  into  the 
Revised  Statutes  of  1873-74  (section  639,  Rev.  St.  subsecs.  1-3). 
The  first  innovation  upon  this  seemingly  just  and  reasonable  rule 
which  had  obtained  from  the  organization  of  the  Federal  courts 
occurred  in  the  Act  of  1875.  18  Stat.  c.  137.  That  act  was  de- 
signed to  enlarge  the  jurisdiction  of  the  Circuit  courts  of  the 
United  States,  whether  original  over  suits  brought  therein,  or  b}' 
removal  from  the  State  courts.  It  extended  the  jurisdiction  of  the 
Federal  courts  to  the  very  verge  of  the  constitutional  limit  of  the 
grant  of  judicial  power.  Among  other  provisions  to  carry  out  this 
object,  it  extended  the  right  of  removal  to  "either  party  or  one 
or  more  of  the  plaintiffs  or  defendants,"  and  did  not  restrict  the 
right  to  the  party  or  parties  who  were  non-residents  of  the  State 
in  which  the  suit  was  brought.  But  this  act  was,  in  turn,  super- 
seded and  repealed  by  the  Act  of  March  3,  1887,  as  corrected  by 
the  Act  of  August  13,  1888  (25  Stat.  434,  c.  866).  Section  2  of 
that  act  provides: 

"Sec.  2.     (1)     That  any  suit  of  a  civil  nature,  at  law  or  in 
equity,  arising  under  the  Constitution  or  laws  of  the  United  States, 
Wheaton  C.  F.  P.— 16 


242  Cases  on  Federal  Procedure 

or  treaties  made,  or  which  shall  be  made,  under  their  authority,  of 
which  the  Circuit  courts  of  the  United  States  are  given  original 
iurisdiction  by  the  preceding  section,  which  may  now  be  pending, 
or  which  may  hereafter  be  brought,  in  any  State  Court,  may  be 
removed  by  the  defendant  or  defendants  therein,  to  the  Circuit 
Court  of  the  United  States  for  the  proper  district.  (2)  Any 
other  suit  of  a  civil  nature,  at  law  or  in  equity,  of  which  the 
Circuit  courts  of  the  United  States  are  given  jurisdiction  by  the 
preceding  section,  and  which  are  now  pending,  or  which  may 
hereafter  be  brought,  in  any  State  Court,  may  be  removed  into  the 
Circuit  Court  of  the  United  States  for  the  proper  district  by  the 
defendant  or  defendants  therein,  being  non-residents  of  that 
State.  (3)  And  when  in  any  suit  mentioned  in  this  section  there 
shall  be  a  controversy  which  is  wholly  between  citizens  of  different 
States,  and  which  can  be  fully  determined  as  between  them,  then 
either  one  or  more  of  the  defendants  actually  interested  in  such 
controversy  may  remove  said  suit  into  the  Circuit  Court  of  the 
United  States  for  the  proper  district.  (4)  And  where  a  suit  is 
now  pending,  or  may  be  hereafter  brought,  in  any  State  Court, 
in  which  there  is  a  controversy  between  a  citizen  of  the  State  in 
which  the  suit  is  brought  and  a  citizen  of  another  State,  any  de- 
fendant, being  such  citizen  of  another  State,  may  remove  such 
suit  into  the  Circuit  Court  of  the  United  States  for  the  proper 
district,  at  any  time  before  the  trial  thereof,  when  it  shall  be  made 
to  appear  to  said  Circuit  Court  that  from  prejudice  or  local  influ- 
ence he  will  not  be  able  to  obtain  justice  in  such  State  Court,  or 
in  any  other  State  Court  to  which  the  said  defendant  may,  under 
the  laws  of  the  State,  have  the  right,  on  account  of  such  prejudice 
or  local  influence,  to  remove  said  cause." 

This  act  restores  the  rule  of  the  Judiciary  Act  of  1789  as  relates 
to  the  party  who  may  remove  the  suit,  by  restricting  the  right  of 
removal  to  "the  defendant  or  defendants."  Under  this  act,  a 
plaintiff  who  commences  a  suit  in  a  State  Court  cannot  afterwards 
remove  it.  He  is  bound  to  remain  in  the  forum  of  his  own  selec- 
tion. It  will  be  observed  that  the  second  clause  of  the  section  re- 
lating to  the  removal  of  suits  between  citizens  of  different  States 
restricts  the  right  of  removal  to  "non-residents  of  that  State,"  i.  e. 
the  stat«  in  which  the  suit  is  brought;  and  a  like  restriction  is  con- 
tained in  the  fourth  clause,  relating  to  removals  on  the  ground 
of  prejudice  or  local  influence.  While  this  restriction  is  not  found, 
in  express  terms,  in  the  third  clause,  relating  to  the  removal  of 
suits  in  which  there  shall  be  a  controversy  which  is  wholly  between 


District  Courts  243 

citizens  of  different  States,  it  is  plainly  implied,  and  what  is  im- 
plied in  a  vStatute  is  as  much  a  part  of  it  as  what  is  expressed. 
U.  S.  V.  Babbit,  1  Black  61 ;  Gelpcke  v.  Dubuque,  1  Wall.  221;  Wil- 
son Co.  V.  Third  Nat.  Bank,  103  U.  S.  770.     *     *     * 

When  a  defendant  is  sued  alone  in  a  court  of  the  State  of  which 
he  is  a  citizen,  by  a  citizen  of  another  State,  and  the  causes  of 
action  are  such  that  the  suit  might  properly  have  been  brought 
against  him  and  another  if  the  plaintiff  so  elected,  he  confessedly 
cannot  remove  the  suit.  Now,  when  the  suit  is  brought  on  these 
same  causes  of  action  against  him  and  another  by  the  same  plain- 
tiff", in  which  there  is — as  there  must  be  to  give  the  right  of  removal 
at  all — a  controversy  wholly  between  him  and  the  plaintiff,  what 
possible  reason  can  be  suggested  why  he  should  have  the  right  to 
remove  that  controversy  for  trial  into  the  Circuit  Court  in  the 
one  case,  and  the  right  be  denied  to  him  in  the  other?  It  is  the 
same  suit  and  the  same  controversy,  and  between  the  same  parties, 
whether  he  is  sued  alone  or  wuth  another.  If  he  must  be  content 
with  the  justice  of  the  courts  of  his  own  State  in  the  one  case, 
why  not  in  the  other?  It  would  be  difficult  to  conceive  an  inten- 
tion in  Congress  to  make  such  a  senseless  and  absurd  distinction. 
It  is  a  canon  of  construction  that  every  interpretation  of  a  statute 
that  leads  to  such  results  ought  to  be  rejected.  The  mischief  to 
be  remedied  by  the  Act  of  1887  was  the  excessive  jurisdiction  con- 
ferred on  the  Circuit  courts  by  the  Act  of  1875.  The  Supreme 
Court  has  said  repeatedly  that  the  Act  of  March  3,  1887  (24  Stat. 
552,  c.  373),  as  corrected  by  the  Act  of  August  13,  1888  (25  Stat. 
433,  c.  866),  "was  intended  to  contract  the  jurisdiction  of  the 
Circuit  courts  of  the  United  States,  whether  original  over  suits 
brought  therein,  or  by  removal  from  the  State  courts."  Hanrick 
V.  Hanrick,  153  U.  S.  192,  197,  14  Sup.  Ct.  835.  In  the  case  of 
In  re  Pennsylvania  Co.,  137  U.  S.  451,  454,  11  Sup.  Ct.  141,  Mr. 
Justice  Bradley,  speaking  for  the  Supreme  Court,  said:  "The 
general  object  of  the  act  is  to  contract  the  jurisdiction  of  the  Fed- 
eral courts."  In  the  case  of  Smith  v.  Lyon,  133  U.  S.  315,  321,  10 
Sup.  Ct.  303,  Mr.  Justice  Miller  characterized  it  as  "a  statute 
mainly  designed  for  the  purpose  of  restricting  the  jurisdiction  of 
the  Circuit  courts  of  the  United  States."  In  Fisk  v.  Henarie,  142 
U.  S.  459,  467,  12  Sup.  Ct.  207,  Chief  Justice  Fuller,  in  deliver- 
ing the  opinion  of  the  court,  said:  "The  attempt  was  manifestly 
to  restrain  the  volume  of  litigation  pouring  into  the  Federal  courts, 
and  to  return  to  the  standard  of  the  judiciary  act.  *  *  *"  By 
reference  to  the  fourth  clause  of  the  second  section,  which  we  have 


244  Cases  on  Federal  Procedure 

quoted,  it  will  be  observed  that  it  does  not  name  any  amount  as 
requisite  to  give  jurisdiction  where  the  suit  is  removed  on  the 
ground  of  prejudice  or  local  influence,  and  it  was  contended  that 
removals  upon  this  ground  could  be  made  w^ithout  regard  to  the 
amount  in  controversj'^,  and  this  contention  was  upheld  by  some 
of  the  Circuit  courts ;  but  the  Supreme  Court  of  the  United  States, 
giving  effect  to  the  obvious  purpose  and  intention  of  the  act,  held, 
in  effect,  that  the  requirement  as  to  the  amount  necessary  to  give 
jurisdiction  in  other  removal  cases  must  be  imported  into  this 
clause  of  the  act,  and  that  the  suit  could  not  be  removed  on  the 
ground  of  prejudice  or  local  influence  unless  the  amount  in  con- 
troversy exceeded  $2,000.  In  re  Pennsylvania  Co.,  supra.  Again, 
as  to  the  time  when  the  application  for  removal  must  be  filed,  the 
same  clause  of  the  act,  in  express  terms,  declares  it  may  be  done 
"at  any  time  before  the  trial  thereof";  but  the  Supreme  Court, 
taking  into  consideration  all  the  provisions  of  the  act,  and  the 
previous  legislation  on  the  subject,  and  the  judicial  expositions 
thereof,  held  that  this  language  of  the  act  ought  not  to  receive  a 
literal  interpretation,  but  that  it  should  be  construed  as  requiring 
the  petition  "to  be  filed  before  or  at  the  term  at  which  the  cause 
could  first  be  tried,  and  before  the  trial  thereof."  Fisk  v.  Hen- 
arie,  supra.  The  intention  of  the  Act  of  1887  is  to  confine  the  right 
of  removal  in  all  cases  to  defendants  who  are  non-residents  of  the 
State  in  which  they  are  sued.  The  plaintiff,  when  he  sues  in  the 
State  Court,  having  selected  that  forum,  must  remain  there, 
whether  he  be  a  citizen  of  that  or  some  other  State.  The  defendant 
who  is  sued  can  only  remove  the  suit  when  it  is  brought  in  a  State 
other  than  that  in  which  he  resides.  This,  in  the  language  of 
Chief  Justice  Fuller  in  Fisk  v.  Henarie,  supra,  is  a  "return  to 
the  standard  of  the  Judiciary  Act"  of  1789,  concerning  which  Mr. 
Rawle  says:  "But,  if  a  *  *  *  citizen  of  another  State  has 
commenced  the  suit,  he  cannot  afterwards  remove  it,  for  he  is 
bound  by  his  own  selection ;  nor  can  the  defendant  remove,  for  he 
is  not  to  be  apprehensive  of  the  injustice  of  the  courts  of  his  own 
State."  Rawle,  Const,  c.  25  p.  223.  It  is  obvious,  therefore,  that 
the  Act  of  1887,  so  far  at  least  as  relates  to  the  removal  of  suits 
on  the  ground  of  a  separable  controversy,  intended  to  return  to 
the  rule  of  the  Act  of  1866,  which  first  gave  the  right,  and  limited 
it  to  "tlu-  defendant  who  is  a  citizen  of  a  State  other  than  that  in 
which  the  suit  is  brought."  Evans,  having  wrongfully  removed 
the  case  into  the  Circuit  Court,  must  pay  the  costs  in  that  court, 
as  well  ;is  tlie  cosfs  of  the  appeal  to  this  court.     Ilanrick  v.  Han- 


District  Courts  245 

rick,  supra.  The  decree  of  the  Circuit  Court  is  reversed,  and  the 
cause  remanded,  with  directions  to  that  court  to  vacate  all  orders 
and  decrees  made  therein,  and  remand  the  same  to  the  State  Court 
from  M'hence  it  was  removed.^ 

Sanborn,  Circuit  Judge. — I  concur  in  the  result  in  this  case  on 
the  ground  first  stated  in  the  opinion. 


STANBROUGH  v.  COOK. 

Circuit  Cmrt,  N.  D.  Iowa,  E.  D,    1889. 

38  Fed.  369. 

The  plaintiff,  a  citizen  of  New  York,  sued  Edward  Cook,  a  citi- 
zen of  Iowa,  together  with  other  defendants,  some  of  whom  were 
citizens  of  Iowa,  and  others  were  citizens  of  Vermont. 

At  the  March  term  of  the  State  Court  the  defendant  Edward 
Cook  filed  a  petition  and  bond  asking  a  removal  of  the  cause  into 
this  court.  A  transcript  of  the  record  having  been  filed,  the  plain- 
tiff now  moves  for  an  order  remanding  the  case  on  the  ground  that 
the  right  of  removal  did  not  exist  in  favor  of  the  defendant  Cook, 
and  that  this  court  is  without  jurisdiction.  The  right  of  removal 
is  claimed  under  the  clause  of  section  2  of  the  Act  of  Congress 
approved  August  13,  1888,  which  provides  that,  "and  when  in 
any  suit  mentioned  in  this  section  there  shall  be  a  controversy 
which  is  wholly  between  citizens  of  different  States,  and  which 
can  be  fully  determined  as  between  them,  then  either  one  or  more 
of  the  defendants  actually  interested  in  such  controversy  may 
remove  said  suit  into  the  Circuit  Court  of  the  United  States  for 
the  proper  district. ' '  ^ 

Shiras,  J. — The  most  important  question  presented  for  decision 
is  whether  under  this  clause,  under  any  circumstances,  a  removal 
can  be  had  at  the  instance  of  a  defendant  residing  in  the  State 
wherein  the  suit  is  brought.  The  contention  on  part  of  plaintiff 
is  that  the  right  of  removal  is  restricted  to  non-resident  defendants. 


Ed. 


1  Only  a  portion  of  the  opinion  is  reprinted. — Ed. 

2  The  facts  are  restated,  and  only  a  portion  of  the  opinion  is  reprinted. — 


246  Cases  on  Federal  Procedure 

even  if  it  be  true  that  the  suit  is  one  within  the  original  jurisdic- 
tion of  the  United  States  Circuit  Court,  and  embracing  a  contro- 
versy wholly  between  citizens  of  different  States  separable  from 
the  other  issues  therein.  Section  2  of  the  act  defines  four  general 
classes  of  removable  cases:  (1)  Suits  of  a  civil  nature,  at  law  or 
in  equity,  wherein  original  jurisdiction  would  exist  in  the  United 
States  Circuit  Court  under  the  provisions  of  section  1  of  the  act, 
by  reason  of  their  arising  under  the  Constitution,  laws,  or  treaties 
of  the  United  States,  and  involving  $2,000,  are  removable  by  the 
defendant  or  defendants.  (2)  Suits  of  a  civil  nature,  at  law  or 
in  equity,  wherein  original  jurisdiction  would  exist  in  the  United 
States  Circuit  Court  under  the  provisions  of  section  1  of  the  act, 
by  reason  of  the  controversy  being  between  citizens  of  different 
States,  and  involving  over  $2,000,  or  by  reason  of  its  being  a  con- 
troversy between  citizens  of  the  same  State  claiming  lands  under 
grants  from  different  States,  or  by  reason  of  its  being  a  contro- 
versy between  citizens  of  a  State  and  foreign  States,  citizens,  or 
subjects,  and  involving  over  $2,000,  are  removable  by  the  defend- 
ant or  defendants  therein,  if  they  are  non-residents  of  the  State 
wherein  suit  is  brought  in  the  State  Court.  (3)  Suits  of  a  civil 
nature,  at  law  or  in  equity,  coming  within  the  original  jurisdiction 
of  the  United  States  Circuit  Court  for  any  of  the  reasons  enumer- 
ated in  the  two  preceding  paragraphs,  and  which  include  a  con- 
troversy which  is  wholly  between  citizens  of  different  States,  and 
which  can  be  fully  determined  as  between  them,  are  removable 
by  either  one  or  more  of  the  defendants  actually  interested  in  such 
controversy.  (4)  Suits  in  which  there  is  a  controversy  between 
a  citizen  of  the  State  wherein  the  suit  is  brought  and  a  citizen  of 
another  State  may  be  removed  on  the  ground  of  prejudice  or  local 
influence  by  a  defendant,  provided  he  is  a  citizen  of  a  State  other 
than  that  in  which  the  suit  is  pending.  In  the  first  clause  of  sec- 
tion 2  covering  the  first  classification  given  above  the  declaration 
is  that  the  suit  may  be  removed  by  the  defendant  or  defendants. 
In  the  second  clause  of  the  section  covering  the  second  classification 
{i])ove  given  tlie  declaration  is  that  the  suit  maj'  be  removed  by  the 
(h'fcnduiit  or  defendants,  Ix'ing  non-residents  of  the  State  wherein 
suit  is  pending.  In  the  third  clause  of  the  section  covering  the 
third  classification  above  given  the  dcclar-ation  is  that  any  one  or 
more  of  the  defendants  actually  interested  in  such  controversy 
may  remove  the  suit.  In  tlie  fourth  clause  of  the  section  covering 
thf  fourth  classification  above  given  the  declaration  is  that  any 
defendant,  being  a  citizen  of  another  State  than  that  wherein  suit 


District  Courts  247 

is  pending,  may  remove  the  same.  So  far  as  the  express  language 
of  clauses  are  concerned,  in  the  first  and  third  the  right  of  removal 
is  conferred  on  the  defendant.  In  the  second  it  is  conferred  on 
the  defendant  provided  he  is  a  non-resident  of  the  State  wherein 
suit  is  pending,  which  would  include  defendants  who  are  citizens 
of  other  States,  aliens,  foreign  subjects,  and  foreign  States;  and 
in  the  fourth  the  right  of  removal  is  conferred  on  the  defendant 
provided  he  is  a  citizen  of  another  State. 

According  to  the  argument  of  plaintiff  the  court  should  hold 
that  in  cases  coming  under  the  third  classification  above  given, 
and  the  third  clause  of  the  section,  the  removal  cannot  be  invoked 
by  a  defendant,  unless  he  is  a  non-resident  of  the  State  wherein 
the  suit  is  pending.  It  cannot  be  held  that  such  is  the  meaning  of 
the  clause  unless  the  court  interpolates  the  words,  "being  a  non- 
resident," into  the  clause  of  the  section  in  question.  In  the  next 
case  perhaps  the  contention  would  be  that  the  court  should  inter- 
polate the  words  "being  a  citizen  of  another  State"  in  order  to 
conform  to  the  wording  of  the  fourth  clause.  So,  also,  if  the  court 
should  interpolate  these  words  in  the  third  clause,  would  not  the 
like  reasoning  require  the  interpolation  of  the  same  words  in  the 
first  clause  ?  Certainly  this  would  be  disregarding  the  plain  words 
of  the  statute,  and  adding  thereto  qualifications  and  restrictions 
not  found  in  it,  as  it  was  passed  by  Congress.  Each  of  the  four 
clauses  in  section  2  of  the  act  deals  with  different  classes  of  cases, 
and  each  clause  defines  by  its  terms  by  whom  the  right  of  removal 
may  be  exercised  in  the  cases  coming  within  the  purview  of  each 
clause,  and  the  court  is  not  justified  in  adding  to  any  of  the  several 
clauses  restrictions  upon  the  right  of  removal  not  found  in  the 
clause  itself,  on  the  ground  that  thereby  the  construction  of  the 
clause  will  be  conformed  to  the  true  intent  of  Congress.  Such  a 
line  of  argument  proceeds  upon  the  theory  that  the  court,  aside 
from  the  language  of  the  act,  knows  what  the  true  intent  of 
Congress  was  in  adopting  the  act  and  the  several  clauses  thereof, 
and  must  therefore  add  to  the  clauses  any  words  necessary  to  con- 
form the  meaning  thereof  to  the  assumed  intent  of  Congress,  upon 
the  assumption  that  they  were  accidentally  omitted.  In  constru- 
ing an  act  of  the  character  and  purpose  of  the  one  under  consid- 
eration, the  court  must  hold  the  meaning  thereof  to  be  that  which 
the  act  itself  discloses.  We  construe  the  act  and  the  several 
clauses  thereof  to  ascertain  the  meaning  of  Congress,  and  are  not 
justified  in  assuming  that  Congress  intended  something  not  fairly 
deducible  from  the  language  of  the  act  itself,  as  applied  to  the 


248  Cases  on  Federal  Procedure 

subject-matter  it  is  dealing  with.  It  is  clear  beyond  question  that 
in  section  2  of  the  act  four  general  classes  of  removable  cases  are 
provided  for,  and  each  clause  defines  by  whom  such  removal  may 
be  had  of  cases  coming  within  the  language  of  the  clause.  Accord- 
ing to  ine  plain  intent  and  meaning  of  the  language  used,  cases 
coming  within  the  third  clause — that  is,  suits  involving  a  separable 
controversy  wholly  between  citizens  of  different  States — are  remov- 
able by  any  one  or  more  of  the  defendants  actually  interested  in 
such  separable  controversy. 

It  is  urged  in  argument  that  no  good  reason  can  be  adduced 
why  the  right  of  removal  is  granted  in  this  clause  to  a  defendant, 
whether  a  resident  or  not  of  the  State  wherein  suit  is  brought, 
but  in  the  preceding  clause  is  conferred  only  on  non-resident  de- 
fendants. It  is  a  sufficient  reason  for  the  court  to  say,  ita  scripta 
est.  "When  the  language  of  an  act  is  plain  and  clear  the  court  is 
bound  to  assume  that  the  legislative  body  that  passed  the  act  had 
good  reason  for  the  enactment,  and  simply  because  the  court  may 
not  be  able  to  discover  or  demonstrate  the  wisdom  thereof,  it  is  not 
justified  in  assuming  that  the  Legislature  must  have  meant  some- 
thing other  or  different  from  that  which  appears  upon  the  face 
of  the  statute.  Therefore,  as  there  are  not  found  in  the  third 
clause  of  section  2  any  words  restricting  the  right  of  removal  to 
non-resident  defendants,  and  as  the  clause  expressly  declares  that 
any  one  or  more  of  the  defendants  interested  in  the  separable  con- 
troversy^ between  citizens  of  different  States  may  remove  the  suit, 
it  must  be  held  that  such  is  the  meaning  of  the  act;  or,  in  other 
words,  that  in  suits  otherwise  coming  within  the  definitions  of  this 
third  clause,  a  removal  may  be  had  by  any  one  or  more  of  the 
defendants  interested  in  such  separable  controversy,  irrespective 
of  the  question  of  the  residence  or  citizenship  of  such  defendant. 


TIIOURON  V.  EAST  TENNESSEE,  V.  &  G.  RY.  CO. 

Circuit  Court,  E.  D.  Tennessee.     1889. 

38  Fed.  673. 

In  Efjuify.     On  motion  to  remand. 

Tlx-  (■(implainants,  who  originally  sued   in  llie  Chancery  Court 
of  Knox  CDiiiify,  Tciiiicsscc,  wcyr  not,  except   for  one,  citizens  of 


District  Courts  249 

Tennessee.  One  defendant  was  a  citizen  of  Tennessee.  Another 
one  of  several  defendants  was  a  citizen  of  Virginia  and  petitioned 
for  a  removal  to  the  proper  Federal  Court  on  the  ground  of  preju- 
dice and  local  influence.  There  was  a  removal  and  then  a  motion 
to  remand  was  made.^ 

Jackson,  J. —  *  *  *  j^  jjiay  be  true,  as  urged  by  counsel 
for  defendant  in  opposition  to  the  motion  to  remand,  that  the 
presence  of  a  single  resident  plaintiff  or  complainant,  though 
joined  with  other  non-citizens  of  the  State  in  which  the  suit  is 
brought,  injects  into  the  case  the  poison  of  prejudice  or  local  in- 
fluence against  which  the  non-resident  was  intended  to  be  guarded 
or  protected  as  effectually  as  though  such  resident  was  the  sole 
party  plaintiff;  but,  as  the  right  of  removal  depends  upon  the 
legislation  of  Congress  giving  the  authority  therefor,  the  point  to 
be  determined  is  not  whether  cases  thus  situated  come  within  the 
mischief  to  be  guarded  against,  nor  whether  the  judicial  power 
of  the  United  States  is  sufficient  to  reach  such  eases.  This  may 
all  be  conceded,  and  the  question  still  remains  whether  under  or 
by  existing  legislation  on  the  subject  of  removals  on  account  of 
prejudice  or  local  influence  any  provision  has  been  made  which 
embraces  or  applies  to  suits  in  which  there  are  several  joint  plain- 
tiffs or  co-complainants,  only  a  portion  of  whom  are  citizens  of  the 
State  in  which  the  action  is  brought.  In  considering  this  ques- 
tion the  court  must  observe  and  apply  the  well-settled  rule  for 
the  construction  of  statutes  that  clauses  of  the  later  or  present  act 
should  be  given  the  established  meaning  of  the  earlier  act  from 
which  they  are  copied.  In  so  far,  therefore,  as  the  Act  of  March 
3,  1887,  copies  old  clauses  or  provisions  of  the  Act  of  1867  (sub- 
division 3,  §  639,  Rev.  St.),  it  must  be  regarded  as  a  legislative 
re-enactment  of  the  meaning  which  the  Supreme  Court  had  pre- 
viously given  to  these  clauses.  The  last  clause  of  the  second  sec- 
tion of  the  Act  of  March  3,  1887  (above  quoted),  which,  as  we 
think,  operated  as  a  repeal  of  subdivision  3,  §  639,  Rev.  St.,  em- 
bodying the  Act  of  March  2,  1867,  introduces  well-defined  changes 
in  the  old  law,  such  as  taking  from  the  non-resident  plaintiff  the 
right  to  remove,  the  character  of  the  affidavit  required,  the  court 
to  which  the  application  for  removal  is  to  be  made,  confining  the 
right  of  removal  upon  "anj^  defendant"  being  a  citizen  of  another 
State  who  can  make  the  requisite  showing  as  to  prejudice  or  local 

1  The  facts  essential  to  the  understanding  of  the  portion  of  the  case 
reprinted    are    restated. — Ed. 


250  Cases  on  Federal  Procedure 

influence,  and  allowing  the  removal  to  take  place,  perhaps,  with- 
out reference  to  the  amount  involved  in  the  suit.  But,  in  respect 
to  the  character  of  the  suit  and  the  parties  thereto,  the  language 
of  the  two  acts  is  the  same.  The  Act  of  1867  provided  "that 
where  a  suit  is  now  pending  or  may  hereafter  be  brought  in  any 
State  Court  in  which  there  is  a  controversy  between  a  citizen  of 
the  State  in  which  the  suit  is  brought  and  a  citizen  of  another 
State,"  etc.,  the  citizen  of  such  other  State,  w^hether  plaintiff  or 
defendant,  making  the  required  affidavit,  and  within  the  time 
prescribed,  was  allowed  to  remove  the  suit.  Now,  the  first  portion 
of  the  last  clause  of  section  2  of  the  Act  of  1887  employs  the  same 
descriptive  terms  as  to  the  suit  and  parties,  as  follows:  "And 
where  a  suit  is  now  pending  or  may  be  hereafter  brought  in  any 
State  Court  in  which  there  is  a  controversy  between  a  citizen  of 
the  State  in  which  the  suit  is  brought  and  a  citizen  of  another 
State,"  any  defendant  being  a  citizen  of  another  State  may  effect 
the  removal  in  the  mode  and  manner  described.  The  suit  described 
in  both  acts  as  to  the  parties  is  "between  a  citizen  of  the  State 
in  which  it  is  brought  and  a  citizen  of  another  State." 

In  construing  the  Act  of  1867  the  Supreme  Court  of  the  United 
States  has  uniformly  held  that  if  on  each  side  of  such  suit  there 
be  more  than  one  person,  then  all  the  persons  on  one  side  must  be 
citizens  of  the  State  in  which  the  suit  is  brought,  and  all  the  par- 
ties on  the  other  side  citizens  of  some  other  State,  and  the  latter, 
having  the  right  of  removal,  were  required  to  unite  in  the  petition 
therefor.  See  Sewing-Machine  Cos.  Case,  18  Wall,  553;  Vannevar 
V.  Bryant,  21  Wall.  41 ;  Society  v.  Grove,  101  U.  S.  610,  611 ;  Myers 
v.  Swann,  107  U.  S.  546,  2  Sup.  Ct.  Eep.  685;  Society  v.  Price, 
110  U.  S.  61,  3  Sup.  Ct.  Rep.  440;  Jefferson  v.  Driver,  117  U.  S. 
272,  6  Sup.  Ct.  Rep.  729 ;  Iron  Co.  v.  Ashburn,  118  U.  S.  54,  6  Sup. 
Ct.  Rep.  929 ;  Hancock  v.  Ilolbrook,  119  U.  S.  586,  7  Sup.  Ct.  Rep. 
341.  Under  the  rules  laid  down  in  these  cases,  that  the  removal  6f 
a  cau.se  from  a  State  Court  on  the  ground  of  prejudice  or  local 
influence  could,  under  the  Act  of  1867,  be  had  only  when  all  the 
parties  to  the  suit  on  one  side  are  citizens  of  different  States  from 
those  on  the  other,  it  is  perfectly  clear  that  the  citizenship  of  the 
co-complainant  in  the  pi'osont  case  would,  under  the  former  law, 
have  defeated  the  right  of  removal,  even  if  the  Richmond  &  Dan- 
ville Railroad  Company  had  been  the  sole  defendant.  Under  the 
Act  of  1887,  a(lo])ting  the  same  language  found  in  the  Act  of  1867, 
so  far  as  the  eifi/enship  of  i)arties  on  the  plaintiff  side  of  the  suit 
is  concerned,  it  is  diflioult  to  escape  the  conclusion  that  the  same 


District  Courts  251 

rule  would  apply,  and  that  where  the  citizenship  on  the  plaintiff 
side  of  the  suit  is  such  as  would  prevent  the  removal  under  the 
Act  of  1867,  it  would  be  equally  effective  to  defeat  the  right  under 
the  Act  of  1887.2 


COCHRAN  V.  MONTGOMERY  COUNTY. 

Supreme  Court  of  the  United  States.     1905. 

199  U.  8.  260,  26  8.  Ct.  58,  50  L.  Ed.  182. 

A  citizen  of  Alabama  brought  suit  in  an  Alabama  State  Court 
against  a  citizen  of  ^Maryland  and  a  citizen  of  Alabama,  where- 
upon the  Circuit  Court  for  the  Northern  District  of  Alabama  or- 
dered the  removal  of  the  case  on  the  petition  of  the  citizen  of  IMary- 
land  alleging  prejudice  or  local  influence.  A  motion  to  remand 
was  denied,  and  the  case  went  to  trial  and  judgment.  That  judg- 
ment was  affirmed  by  the  Circuit  Court  of  Appeals  and  a  writ  of 
error  from  this  court  was  thereupon  prosecuted.^ 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the 
court.     *     *     * 

In  the  applications  for  removal  under  clauses  one  and  two  of 
section  two  of  the  Act  of  1887,  all  the  defendants  were  required 
to  join  in  the  application.  Chicago,  R.  I.  &  P.  R.  Co.  v.  Martin, 
178  U.  S.  245 ;  Gableman  v.  Peoria,  D.  &  E.  R.  Co.,  179  U.  S.  335. 
Under  clause  three,  relating  to  cases  of  separable  controversy,  and 
clause  four,  all  the  defendants  need  not  join.  But  the  fourth 
clause,  treating  of  removals  because  of  prejudice  or  local  influence, 
does  not  furnish  a  separate  and  independent  ground  of  Federal 
jurisdiction,  and,  as  Mv.  Justice  Bradley  said  in  In  re  Pennsyl- 
vania Company,  137  U.  S.  451,  456,  "describes  only  a  special  case 
comprised  in  the  preceding  clauses."  In  that  case  we  referred  to 
the  opinion  of  ]\Ir.  Justice  Harlan  in  Malone  v.  Richmond  &  Dan- 

2  As  to  the  necessity  of  a  complete  diversity  of  citizenship,  see,  contra, 
Bonner  v.  Meikle,  77  Fed.  485,  489  (1896);  Hobncs  v.  Southern  Ey.  Co., 
125  Fed.  .^01  (1903);  Parker  v.  Vanderbilt,  l;{6  Fed.  246,  249  (1905).— 
Ed. 

1  The  facts  are  restated  as  given  in  the  syllabus  of  the  case,  and  only 
a  portion  of  the  case  is  reprinted. — Ed. 


252  Cases  on  Federal  Procedure 

ville  Eailroad  Companj-,  35  Fed.  Rep.  625,  as  expressing  the  cor- 
rect view  of  the  law.  The  question  was  whether  the  pecuniary 
limit  was  applicable  under  the  fourth  clause,  and  that  involved 
consideration  of  the  other  clauses.  Mr.  Justice  Harlan  there 
said: 

"It  is  clear  from  the  above  clauses,  construing  them  all  together, 
that  the  right  of  removal,  at  any  time  before  trial,  on  the  ground 
of  prejudice  or  local  influence,  is  restricted,  by  the  Act  of  1887, 
to  suits  in  which  there  is  a  controversy  between  citizens  of  differ- 
ent States ;  also  that  such  right,  in  suits  of  that  character,  involv- 
ing no  Federal  question,  now  belongs  only  to  the  defendant  who 
is  a  citizen,  or  to  the  defendants  who  are  citizens  of  a  State  other 
than  that  in  which  the  suit  is  brought.  And  I  think  it  is  equally 
clear  that  the  right  of  removal  on  the  ground  of  prejudice  or  local 
influence  does  not  exist  in  any  case  unless  the  sum  or  value  of  the 
matter  in  dispute  exceeds  $2,000,  exclusive  of  interest  and  costs. 
The  clauses  of  the  second  section  of  the  Act  of  1887,  defining  the 
different  kinds  of  suits  that  may  be  removed,  preserve  the  same 
element  of  the  value  of  the  matter  in  dispute  as  is  found  in  the 
first  section,  relating  to  the  original  jurisdiction  of  Circuit  courts. 
This  is  done  by  the  provision  giving  the  right  of  removal  in  suits 
'  of  which  the  Circuit  courts  of  the  United  States  are  given  original 
jurisdiction  by  the  preceding  (first)  section.' 

"  *  *  *  rpi^g  subsequent  clause,  relating  to  prejudice  and 
local  influence,  does  not  describe  a  new  class  of  suits,  removable 
from  the  State  courts,  but  only  specifies  a  distinct  ground  for 
removing  one  class  of  the  suits  previously  defined,  namely',  that 
class  in  which  there  is  a  controversy  between  citizens  of  different 
States.  And  that  ground  the  defendant  is  at  liberty  to  set  up  *at 
any  time  before  the  trial';  whereas,  by  the  third  section  of  the 
act,  the  right  to  remove,  upon  any  other  ground,  will  be  lost,  if 
not  exercised  at  the  time  or  before  'the  defendant  is  required  by 
the  laws  of  the  State  or  the  rule  of  the  State  Court'  in  which  the 
suit  is  brought  'to  answer  or  plead  to  the  declaration  or  complaint 
of  the  plaintiff.'  The  clause  i)rescribing  prejudice  or  local  influ- 
ence as  ground  lor  the  removal  of  a  suit  'in  which  there  is  a  con- 
troversy between  a  citizen  of  the  State  in  which  the  suit  is  brought 
and  a  citizen  of  another  State,'  cannot  well  be  separated,  in  the 
process  of  interpretation,  from  the  preceding  clause  in  the  same 
section,  which,  liy  referring  to  the  first  section,  requires  as  a  con- 
dition of  the  I'einoval  of  a  suit  because  of  diverse  citi/.ensliip — the 
only  kind  of  suit  in  which  the  existence  of  prejudice  or  local  influ- 


District  Courts  253 

ence,  as  affecting  the  right  of  removal,  is  of  any  consequence — 
that  the  matter  in  dispute  shall  exceed  in  value  $2,000,  exclusive 
of  interest  and  costs."     *     *     * 

The  Circuit  Court  was  of  opinion  that  the  words  "any  defend- 
ant, being  such  citizen  of  another  State,  may  remove,"  etc.,  im- 
plied that  there  might  be  defendants  who  were  not  citizens  of  an- 
other State  and  yet  the  cause  be  removable,  but  while  the  words, 
standing  alone,  are  susceptible  of  that  construction,  we  think  it 
was  not  intended  to  change  the  meaning  of  the  terms  as  previously 
determined  (by  the  decisions  under  the  Act  of  1789,  and  so  on 
down),  and  that  the  class  of  cases  removable  on  the  ground  of 
prejudice  and  local  influence  is  confined  to  those  in  which  there 
is  a  controversy  between  a  citizen  or  citizens  of  the  State  in  which 
the  suit  is  pending  and  a  citizen  or  citizens  of  another  or  other 
States,  and  that  the  clause  did  not  include  cases  wherein  the  con- 
troversy was  partly  between  citizens  of  the  same  State.  To  hold 
otherwise  brings  the  language  of  the  clause  into  conflict  with  the 
rule  that  a  suit  to  be  removable  must  be  within  the  original  ju- 
risdiction of  the  Circuit  Court,  departs  from  the  settled  former 
construction,  and  ignores  the  main  pui*pose  of  the  Act  of  1887, 
which  was  to  restrict  the  jurisdiction  of  the  Circuit  Court.  Han- 
rick  V.  Hanrick,  153  U.  S.  192 ;  Anderson  v.  Bowers,  43  Fed.  Rep. 
321 ;  Moon  on  the  Removal  of  Causes,  §  189  and  notes. 

And  there  does  not  seem  to  be  any  escape  from  this  conclusion 
in  view  of  the  provision  of  the  first  section  of  the  Act  of  1887, 
that  when  the  jurisdiction  is  founded  solely  on  diversity'  of  citi- 
zenship, suit  can  be  brought  "only  in  the  district  of  the  plaintiff 
or  the  defendant." 

If  brought  in  the  district  of  the  plaintiff  or  plaintiffs,  the  de- 
fendant or  defendants  (the  singular  embraces  the  plural)  must 
necessarily  be  a  citizen  or  citizens  of  another  State  than  that  of 
plaintiff  or  plaintiffs.  If  brought  in  the  district  of  defendant 
or  defendants  no  removal  can  be  had,  because  it  is  only  defend- 
ants who  are  "non-residents"  who  can  remove  under  clause  two, 
or  under  clause  four,  prejudice  or  local  influence  not  being  an 
independent  ground  of  jurisdiction.  But  in  order  that  a  defend- 
ant entitled  to  remove  might  not  be  cut  off  from  the  exercise  of  that 
right  by  his  co-defendants  declining  to  join  in  the  application,  the 
fourth  clause  provided  that  "anj'-  defendant"  might  remove,  and 
out  of  abundant  caution  the  words  were  added,  "being  such  citi- 
zen of  another  State,"  apparently  to  prevent  misconstruction  of 


254  Cases  on  Federal  Procedure 

the  words  ''any  defendant,"  in  possible  enlargement  of  the  ju- 
risdiction. 

The  main  purpose  of  the  act  of  1887  was,  as  has  been  repeatedly- 
said,  to  restrict  the  jurisdiction,  and  this  was  largely  accomplished 
in  the  matter  of  removals  by  Avithholding  the  right  from  plain- 
tiffs and  only  according  it  to  defendants  when  sued  in  plaintiffs' 
district. 

In  the  present  case  suit  was  brought  in  the  plaintiffs'  State 
against  Cochran,  a  citizen  of  the  same  State,  who  was  a  necessary 
party,  and  the  Surety  Company,  a  citizen  of  Maryland.     *     *     * 

And  this  being  so,  the  case  was  improvidently  removed  and 
should  have  been  remanded. 

Writ  of  error  dismissed,  certiorari  granted,  judgment  reversed 
and  cause  remanded  to  Circuit  Court  with  a  direction  to  remand 
to  State  Court. 


WIIELAX  V.  NEW  YORK,  L.  E.  &  W.  R.  CO. 

Circuit  Court,  X.  D.  Ohio,  E.  D.     1888. 

35  Fed.  849,  1  L.  R.  A.  65. 

This  was  an  action  by  a  citizen  of  Ohio  against  three  Ohio  cor- 
porations and  a  New  York  corporation  to  enforce  a  joint  liability 
imposed  hy  State  statute  for  personal  injuries  sustained  by  the 
plaintiff.^ 

Jackson,  J. — The  removal  in  the  present  case  cannot,  therefore, 
be  sustained  under  subdivision  3  of  section  639,  but  must  rest 
alone  upon  the  fourth  clause  of  amended  section  2  of  the  act  of 
.March  3,  1887.  Was  the  removal  rightfully  made  under  that 
clause?  This  presents  the  question  whether  a  single  defendant, 
being  a  citizen  of  a  State  other  than  that  in  which  the  suit  is 
brought,  who  is  jointly  sued  with  other  defendants,  citizens  of 
the  same  State  as  the  plaintiff,  may  remove  the  suit  to  the  Cir- 
cuit Court  upon  making  it  appear  to  said  court  that  on  account  of 
prejudice  or  local  influence  he  cannot  obtain  justice  in  the  State 
court  or  <ou)'1s.     Under  former  acts,  as  construed  by  the  decisions 

1  Tlic  fncts  Mici'ssaiy  l(»  tJic  iiiKlfrMlniKliii}^  of  tliat  [lart  of  the  case  whicb 
is  reprint*'*]  arc  rc«tatc(l. — Ed. 


District  Courts  255 

above  cited,  all  the  material  parties  on  one  side  of  the  suit  having 
the  requisite  citizenship  and  right  of  removal  were  required  to 
unite  in  the  petition  therefor ;  but  under  this  fourth  clause  of  the 
second  amended  section  of  the  act  of  1887  it  is  provided  that, 
where  therg  is  pending  in  any  State  Court  a  "suit"  in  which  there 
is  *'a  controversy  between  a  citizen  of  the  State  in  which  the  suit 
is  brought  and  a  citizen  of  another  State,  any  defendant  being 
such  citizen  of  another  State  may  remove  such  suit  into  the  Cir- 
cuit Court  of  the  United  States,  at  any  time  before  the  trial  thereof, 
v.'heu  it  shall  be  made  to  appear  to  said  Circuit  Court  that  from' 
prejudice  or  local  influence  he  will  not  be  able  to  obtain  justice  in 
such  State  Court,"  etc.  The  whole  suit  being  removed  by  "any" 
defendant  having  the  requisite  citizenship,  and  on  making  the 
proper  showing  to  the  Circuit  Court  as  to  his  inability  to  obtain 
justice  in  the  local  court  on  account  of  prejudice  or  local  influ- 
ence, "if  it  further  appear  (to  said  court)  that  said  suit  can  be 
full}''  and  justly  determined,  as  to  the  other  defendants,  in  State 
Court,  without  being  affected  by  such  prejudice  or  local  influence, 
and  that  no  party  to  the  suit  will  be  prejudiced  by  a  separation 
of  the  parties,  said  court  may  direct  the  suit  to  be  remanded,  so 
far  as  relates  to  such  other  defendants,  to  the  State  Court,  to  be 
proceeded  with  therein."  This  last  paragraph  of  the  clause  clearly 
implies  that  there  may  be  defendants  to  the  suit,  and  even  neces- 
sary parties,  who  are  not  entitled  to  remove  the  same;  and  it 
further  contemplates  and  provides  for  a  case  in  which  the  suit 
may  be  retained  in  the  Circuit  Court  as  against  a  single  defend- 
ant, and,  by  the  fair  import  of  the  language,  such  defendant  must 
be  the  party  who  has  effected  the  removal  of  the  suit.  The  "other 
defendants"  as  to  whom  a  separation  may  be  had,  and  the  suit 
remanded,  under  the  conditions  stated,  cannot  properly  refer  to 
the  defendant  at  whose  instance  or  on  whose  application  the  re- 
moval was  made.  If  all  the  defendants  to  the  suit,  as  under  the 
act  of  1867,  are  required  to  possess  the  requisite  citizenship,  and 
local  prejudice  must  exist  as  to  all  and  all  must  join  in  the  peti- 
tion for  removal,  before  such  removal  can  be  properly  allowed, 
what  possible  application,  meaning,  or  effect  can  be  given  to  this 
last  paragraph  of  the  clause?  That  construction  of  the  clause 
would  present  this  anomaly;  that,  after  all  the  defendants  had 
applied  for  and  obtained  a  removal  of  the  suit  on  account  of  local 
prejudice,  the  Circuit  Court  could  still  separate  and  remand  the 
suit  so  far  as  it  relates  to  some  of  said  defendants,  because,  as  to 
them,  it  appeared  there  was  no  local  influence  or  prejudice.    The 


256  Cases  on  Federal  Procedure 

right  to  remove  the  suit  is  given  to  "any  defendant"  being  a 
citizen  of  the  State  other  than  that  in  which  the  suit  is  brought, 
when  it  is  made  to  appear  to  the  Circuit  Court  that  "he"  cannot 
obtain  justice  because  of  local  influence  or  prejudice.  By  what 
rule  of  construction  is  the  language  "any  defendant"  to  be 
interpreted  as  meaning  "all"  the  defendants  to  the  suit?  The 
natural  import  of  the  words  and  the  whole  structure  of  the  clause 
admit  of  no  such  interpretation,  without  doing  violence  to  the 
language  employed.  In  Montclair  v.  Ramsdell,  107  U.  S.  147,  2 
Sup.  Ct.  Rep.  391,  it  is  said: 

"It  is  the  duty  of  the  court  to  give  effect,  if  possible,  to  every 
clause  and  word  of  the  statute,  avoiding,  if  it  may  be,  an}'  con- 
struction which  implies  that  the  Legislature  was  ignorant  of  the 
meaning  of  the  language  it  emploj-ed.  We  should  assume  that 
the  legislature  was  aware,  when  the  act  of  April  15,  1868,  was 
passed,  that  a  previous  statute  had  expressly  excepted  Bloomfield 
Township  from  all  of  its  provisions.  When,  therefore,  they  de- 
clared that  the  new  township  should  come  under  the  operation 
of  any  act  from  which  Bloomfield  had  been  specially  excepted 
by  any  proviso  thereof,  the  established  canons  of  statutory'  con- 
struction require  us  to  presume  that  the  Legislature  understood 
the  full  legal  effect  of  such  declaration." 

It  must  be  assumed  that  Congress,  in  the  enactment  of  this 
clause  of  the  act,  was  aware  of  the  fact  that  under  the  construc- 
tion placed  upon  the  prior  removal  acts  (except  perhaps  the  Act 
of  1866)  all  the  parties  on  the  side  seeking  the  removal  were 
required  not  only  to  possess  the  requisite  citizenship,  but  to  join 
in  the  application  for  such  removal.  When,  therefore.  Congress 
declared  that  "anj'  defendant"  being  a  citizen  of  another  State 
might  remove  the  suit  upon  making  it  appear  that  from  prejudice 
or  local  influence  he  could  not  obtain  justice,  the  well-settled  rules 
of  construction  require  the  court  to  presume  that  the  Legislature 
understood  and  intended  the  full  effect  of  such  declaration,  and 
meant  not  to  confine  the  right  of  removal  to  all,  but  to  extend  it 
to  "any"  defendant,  citizen  of  another  State,  who  could  make 
"it  appear  to  said  Circuit  Court"  that  local  influence  or  prejudice 
would  prevent  his  obtaining  justice  in  the  local  form  in  a  suit 
wliif'h  involved  a  conti'oversy  between  himself  and  the  plaintiff 
tiiercin,  in  so  far  as  the  Act  of  1887  copies  old  clauses  or  pro- 
visions of  former  statutes,  it  may  properly  be  regarded  as  a  leg- 
islative re-enactment  of  the  meaning  which  the  Supreme  Court 
had  given  to  such  clauses;  but  in  respect  to  new  provisions,  while 


District  Courts  257 

they  should,  as  far  as  possible,  be  interpreted  so  as  to  harmonize 
with  the  general  scope  of  the  act,  and  form  a  consistent  whole, 
they  are  to  be  construed  according  to  their  plain  and  obvious 
meaning,  if  the  language  admits  of  no  ambiguity.  The  last  act 
must  be  taken  as  the  law  on  the  subject  it  embraced;  and,  "when 
the  meaning  is  plain,  the  court  cannot  recur  to  the  original  stat- 
utes to  see  if  errors  were  committed  in  revising  them."  Iron 
Co.  V.  Ashburn,  118  U.  S.  54,  6  Sup.  Ct.  Rep.  929.  The  clause 
under  consideration  is  a  distinct,  separate,  and  independent  pro- 
vision referring  to  a  class  of  cases  not  embraced  in  or  covered 
by  the  three  preceding  clauses  of  amended  section  2.  By  the 
first  clause  of  said  section  the  right  of  removal  is  given  to  "the 
defendant  or  defendants,"  without  reference  to  his  or  their 
citizenship.  By  the  second  clause  the  removal  may  be  had  "by 
the  defendant  or  defendants  therein  being  non-residents  of  that 
State."  The  third  clause  simply  copies  clause  2,  §2,  of  the 
Act  of  1875,  and  relates  to  separable  controversies  in  which  one 
or  more  of  the  defendants  actually  interested  therein  may  re- 
move the  suit  to  the  Circuit  Court.  This  third  clause  must 
manifestly  receive  the  same  construction  heretofore  placed  upon 
it  by  the  Supreme  Court  in  numerous  cases.  The  "defendant  or 
defendants"  on  whom  the  rights  of  removal  is  conferred  by  the 
first  and  second  clauses  may  include  all  the  defendants,  and  re- 
quire all  to  possess  the  right,  and  to  unite  in  the  application  for 
removal.  But  when  we  come  to  the  new  provision  of  the  fourth 
clause,  the  general  terms  indicative  of  all  the  parties  entitled  to 
remove  are  dropped  or  changed,  and  the  right  of  removal  is  given 
to  "any  defendant."  The  language  of  this  clause  is  essentially 
different  from  that  of  subdivision  3  of  section  639,  which  allowed 
the  removal  on  the  petition  of  the  non-resident  "plaintiff  or  de- 
fendant,"— terms  which  properly  described  all  the  parties  on  the 
one  side  or  the  other  of  the  suit,  and  required  all  on  the  removing 
side  to  be  in  position  to  exercise  the  right,  and  to  join  in  the  peti- 
tion. When  thus  compared  with  the  old  law,  and  the  three  pre- 
ceding clauses  of  said  amended  section  2,  it  seems  perfectly  mani- 
fest that  this  new  (fourth),  clause  was  intended,  as  its  language 
fairly  imports,  as  an  enlargement  of  the  rights  of  removal,  and 
enables  "any  defendant"  being  a  citizen  of  another  State,  be- 
tween whom  and  the  resident  plaintiff  in  a  local  suit  there  is  "a 
controversy,"  to  remove  the  "suit"  by  leave  of  the  Circuit  Court 
upon  cause  shown.  It  is  true,  as  claimed  by  counsel  for  plaintiff, 
that  the  general  intent  and  purpose  of  the  Act  of  1887  was  to 
■\Vheaton  C.  F.  P.— 17 


258  Cases  on  Federal  Procedure 

restrict  the  jurisdiction  of  the  Federal  courts,  and  such  is  the 
effect  and  operation  of  this  new  provision  found  in  said  clause 
4  of  amended  section  2,  so  far  as  relates  to  the  plaintiff;  but, 
while  this  is  so,  there  is  clearly  an  enlargement  of  the  right  to 
remove  in  respect  to  defendants  who  can  show  that  from  prejudice 
or  local  influence  he  or  they  cannot  obtain  justice  in  the  State 
Court.  It  is  argued  by  counsel  for  plaintiffs  that,  inasmuch  as 
this  court  could  not  have  taken  original  jurisdiction  of  this  case, 
it  cannot  acquire  such  jurisdiction  by  removal  at  the  instance  of 
one  defendant  in  the  suit.  This  position  is  fully  met  and  answered 
in  the  case  of  Gaines  v.  Fuentes,  92  U.  S.  10,  where  it  was  held 
that  "the  Act  of  Congress  of  March  2,  1867,  in  authorizing  and 
requiring  the  removal  to  the  Circuit  Court  of  the  United  States 
of  a  suit  pending  or  afterwards  brought  in  any  State  Court  in- 
volving a  controversy  between  a  citizen  of  the  State  where  the 
suit  is  brought  and  a  citizen  of  another  State,  thereby  invests 
the  Circuit  Court  with  jurisdiction  to  pass  upon  and  determine 
the  controversy  when  the  removal  is  made,  though  that  court  could 
not  have  taken  original  cognizance  of  the  case."  Nor  is  the  further 
position  assumed  by  plaintiffs'  counsel,  that  this  new  clause  gives 
the  right  of  removal  on  account  of  local  prejudice  only  when 
there  is  a  separable  controversy  between  the  defendant  seeking 
the  removal  and  the  plaintiff  in  the  State  suit,  well  taken.  The 
case  of  separable  controversies  is  provided  for  by  clause  3  of  said 
amended  section  2  just  preceding  the  new  provision  under  con- 
sideration found  in  clause  4.  But  aside  from  that,  under  previous 
removal  acts,  the  local  prejudice  ground  of  removal,  and  the  sepa- 
rable controversy  clause,  have  never  been  treated  or  regarded  as 
having  any  connection.  Thus  in  Jefferson  v.  Driver,  117  U.  S. 
272,  6  Sup.  Ct.  Rep.  729,  it  was  held  that  the  provision  for  the 
removal  of  a  separable  controversy  in  subdivision  2  of  section  639 
had  no  application  to  removal  under  the  third  subdivision  of  said 
section  relating  to  local  prejudice.  This  was  reaffirmed  in  Iron 
Co.  V.  Ash])uni,  118  U.  S.  54,  6  Sup.  Ct.  Rep.  929.  In  the  new 
amendment  to  Ihe  Act  of  1875,  ('ml)raced  in  clause  4  of  amended 
section  2,  it  cannot  properly  be  assumed  tliat  Congress  intended 
to  charigo  this  line  of  decisions,  and  to  make  tlie  removal  provided 
for  in  said  ohiuse  depend  upon  ihe  existence  of  a  separable  con- 
troversy between  Ihe  parties,  as  well  as  local  prejudice.  This  con- 
struction would  be  to  confuse  two  grounds  or  causes  of  removal 
heretofore  kept  distinct  and  disconnected.  Under  the  provisions 
of  this  fourth  clause,  the  whole  suit  is  first  removed,  and,  if  it  then 


District  Courts  259 

further  appear  to  the  court  that  as  to  the  other  defendants  than 
the  removing  party  the  controversy  involved  may  be  separated,  and 
without  prejudice  to  any  party,  the  suit  may  be  severed  and  re- 
manded, so  far  as  it  relates  to  such  other  defendant  or  defendants. 
The  question  whether  there  is  a  separable  controversy  as  to  some 
of  the  defendants  is  thus  determined  by  the  Circuit  Court  after 
the  suit  as  a  whole  has  been  removed  thereto  by  the  defendant 
who  makes  the  showing  as  to  local  prejudice,  and  asks  for  the 
transfer  from  the  State  Court.  This  procedure  is  inconsistent 
with  the  idea  that  a  separable  controversy  must  actually  exist 
and  be  shown  before  "any"  defendant  can  be  allowed  to  remove 
the  suit. 

It  was  suggested  on  the  argument  of  the  questions  presented 
by  the  pending  motions,  but  has  not  been  urged  in  the  brief  of 
counsel,  that,  under  the  grant  of  judicial  power  in  the  Constitu- 
tion, Congress  could  not  authorize  the  removal  of  a  suit  from  the 
State  Court  situated  as  this  case  is,  at  the  instance  of  one  non- 
resident defendant,  and  thus  confer  upon  this  court  jurisdiction 
to  try  the  suit,  in  which  there  was  also  a  controversy  between 
the  plaintiff  and  other  resident  defendants.  This  precise  question 
has  not  been  directly  decided  by  the  Supreme  Court.  It  was  pre- 
sented and  argued  by  distinguished  counsel  in  the  Sewing-Machine 
Case,  18  Wall.  558,  where  the  parties  to  the  suit  were  situated 
substantially  the  same  as  in  the  present  case,  so  far  as  their  citi- 
zenship was  concerned;  but  the  Supreme  Court  did  not  pass  upon 
it,  the  decision  having  rested  upon  the  construction  of  the  Judiciary 
Act  and  the  Act  of  March  2,  1867,  both  of  which  fall  short  of  con- 
ferring upon  the  Circuit  Court  the  full  judicial  power  granted 
in  and  by  the  Constitution.  The  clause  in  the  Constitution  ex- 
tending the  judicial  power  to  controversies  ''between  citizens  of 
different  States,"  was  intended  to  secure  the  citizen  against  local 
prejudice,  which  might  injure  him  if  compelled  to  litigate  his 
controversy  with  another  in  the  tribunals  of  a  State  not  his  own. 
This  object  was  the  avowed  purpose  of  the  constitutional  provi- 
sion at  the  time  of  its  adoption,  and  the  Supreme  Court  so  de- 
clared in  Gordon  v.  Longest,  16  Pet.  104,  where  it  is  said  that 
"one  great  object  in  the  establishment  of  the  courts  of  the  United 
States  and  regulating  their  jurisdiction  was  to  have  a  tribunal 
in  each  State,  presumed  to  be  free  from  local  influence,  and  to 
which  all  who  were  non-residents  or  aliens  might  resort  for  legal 
redress."  For  the  attainment  of  this  object  Congress  could  have 
vested  the  Circuit  Court  with  original  jurisdiction  in  cases  like 


260  Cases  on  Federal  Procedure 

the  present,  although  some  of  the  defendants  are  residents  of  the 
same  State  with  the  plaintiff.  A  single  Federal  purpose  or  ground 
of  jurisdiction  would  be  sufficient  in  the  exercise  of  the  constitu- 
tional power  to  confer  such  authority.  This  proposition  is  sup- 
ported by  the  decisions  of  the  Supreme  Court  touching  the  Federal 
jurisdiction  growing  out  of  the  subject-matter  of  the  suit.  Thus, 
in  Mayor  v.  Cooper,  6  Wall.  247,  it  is  said  by  the  court:  "Nor 
is  it  any  objection  that  questions  are  involved  which  are  not  all 
of  a  Federal  character.  If  one  of  the  latter  exists,  if  there  be 
a  single  such  ingredient  in  the  mass,  it  is  sufficient. ' '  And,  having 
assumed  jurisdiction  because  of  this  single  Federal  "ingredient," 
the  court  will  proceed  to  decide  all  questions  in  the  suit  of  a  purely 
local  character.  So  under  the  second  clause  of  section  2  of  the 
Act  of  1875,  providing  for  the  removal  of  separable  controversies  of 
a  purely  local  nature  and  belonging  properly  to  the  State  courts  in 
which  the  suit  was  brought.  It  results  necessarily,  from  the  su- 
premacy of  the  Federal  Constitution,  and  the  laws  passed  by  Con- 
gress within  the  limits  of  the  powers  conferred,  that  a  single  Fed- 
eral object  may  control  the  question  of  jurisdiction,  even  when  the 
suit  includes  or  relates  to  other  matters  or  parties  which  come 
properly  within  the  local  jurisdiction.  This  is  clearly  asserted 
in  Barney  v.  Latham,  103  U.  S.  20,  and  that  decision  sustained 
the  constitutionality  of  the  Act  of  1875,  which,  under  the  separable 
controversy  clause,  enabled  one  defendant  to  remove  the  whole 
suit.  If  a  single  defendant  with  a  separable  controversy  may  be 
given  the  right  to  remove  the  whole  suit,  which  includes  other 
matters  of  a  local  character,  why  may  not  a  single  defendant  hav- 
ing the  requisite  citizenship  be  vested  with  the  same  right,  al- 
tliough  joined  with  resident  defendants,  when  it  is  made  to  appear 
to  the  court  that  from  prejudice  or  local  influence  he  cannot  ob- 
tain justice?  The  Federal  judicial  power  extends  as  well  to  one 
case  as  the  other,  and  it  rests  in  the  legislative  discretion  of  Con- 
gress to  say  when  and  under  what  circumstances  and  conditions 
it  shall  be  exercised.  It  would  be  strange,  indeed,  if,  having  the 
power  1o  confer  oi-igiiial  jurisdiction  in  cases  like  the  present, 
(.'ongrcss  could  not  lawfully  give  the  right  of  removal.  The  state- 
ment of  llic  cniiit  ill  (iaiiics  V.  Fuentes,  92  U.  S.  10,  that  "in  cases 
where  tlie  judicial  power  of  the  United  Slates  can  be  applied  only 
because  llu-y  involve  conlroversies  between  cili/.cns  of  different 
States,  it  rests  with  Coii^mcss  to  determine  at  what  time  and  upon 
what  fotiditioiis  llic  jtowcr  may  hv  involved,  whether  originally  in 
the  I-'ederal  Court  or  alter  suit  is  brought  in  the  Slate  Court;  and, 


District  Courts  261 

in  the  latter  case,  in  what  stage  of  the  proceedings,  whether  be- 
fore issue  or  trial  by  removal  to  a  Federal  Court,  or  after  judg- 
ment upon  appeal  or  writ  of  error," — seems  to  leave  little  or  no 
room  to  doubt  the  power  of  Congress  to  authorize  the  removal  in 
the  present  case.  The  argument  in  favor  of  the  power  was  never 
more  forcibly  and  conclusively  presented  than  by  counsel  for 
plaintiff  in  error  in  the  Sewing-Machine  Case,  18  Wall.  558-562. 
In  Fisk  V.  Henarie,  32  Fed.  Rep.  425,  Judge  Deady  considered  and 
discussed  this  question  with  his  usual  ability  and  clearness,  reach- 
ing the  conclusion  that  this  new  legislation  was  clearly  within  the 
grant  of  judicial  power  conferred  upon  Congress  in  and  by  the 
Constitution.  This  court,  after  carefully  re-examining  the  ques- 
tion, has  no  doubt  that  cases  like  the  present  are  within  the  judicial 
power  of  the  United  States,  and  that  by  this  new  legislation  upon 
the  subject  of  removals  because  of  local  prejudice  Congress  in- 
tended to  call  such  power  into  exercise,  and  allow  ''any  defend- 
ant" possessing  the  requisite  citizenship,  and  making  the  required 
showing  as  to  local  prejudice  or  influence,  to  have  the  suit  removed 
to  the  Circuit  Court.  The  demand  sought  to  be  enforced  in  such 
suit  may  be  joint  against  two  or  more  defendants,  one  of  whom 
is  a  citizen  of  the  State  of  the  plaintiff  and  of  the  forum,  while 
the  other,  being  a  citizen  of  a  different  State,  comes  within  the 
range  of  the  Federal  judicial  power.  In  such  cases,  though  jointly 
sued  with  resident  defendants,  there  is  still  a  controversy  between 
such  non-resident  defendants  and  the  resident  plaintiff,  which  the 
Federal  judiciary  can  lay  hold  of  and  determine,  although  it  may 
be  so  associated  or  connected  with  other  local  issues  and  matters 
as  to  require  their  decision  also.  The  single  Federal  ''ingredient" 
involved  in  such  a  controversy  between  citizens  of  different  States 
comes  within  the  grant  of  Federal  judicial  power  which  Congress 
may  make  effective  and  operative  by  legislation  in  which  mode 
and  under  such  conditions  as  may  be  deemed  expedient.  The 
subject  which  the  constitutional  grant  of  power  was  intended  to 
secure  was  to  protect  the  non-resident  citizen  against  local  pre- 
judices which  might  injure  or  do  him  injustice.  That  object  can- 
not be  attained  if  non-resident  defendants,  all  or  any,  are  com- 
pelled to  litigate  in  the  forum  of  the  plaintiff,  where  there  exists 
local  influence  or  prejudice  which  would  prevent  such  defendant 
from  obtaining  justice.  In  every  suit  there  is  "a  controversy" 
between  the  plaintiff  and  each  of  the  defendants  against  whom 
relief  is  sought,  or  where,  as  the  result  of  a  judgment  against 
him,  any  defendant  is  compelled  to  render  something  in  favor  of 
the  plaintiff  which  is  controverted  or  disputed  by  such  defendant. 


262  Cases  on  Federal  Procedure 

DAHLONEGA  CO.  v.  FRANK  W.  HALL  MERCHANDISE  CO. 

Supreme  Court  of  Georgia,  1891. 

88  Ga.  339,  14  S.  E.  473. 

Error  from  Superior  Court.  Lumpkin  County ;  C.  J.  Wellborn, 
Judge. 

Action  by  the  Frank  W.  Hall  Merchandise  Company,  against 
the  Dahlonega  Company,  limited.  Defendant  petitioned  the  Fed- 
eral Court  for  a  removal  of  the  cause  from  the  State  Court,  and 
an  order  was  granted  for  such  removal.  Notwithstanding  such 
order  the  State  Court  proceeded  with  the  trial.  From  a  judgment 
in  favor  of  plaintiff,  defendant  brings  error.     Affirmed. 

Simons,  J. — 1.  We  have  carefully  examined  the  statutes  en- 
acted by  the  Congress  of  the  United  States  on  the  subject  of  re- 
moval of  causes  from  the  State  courts  to  the  United  States  courts, 
and  can  find  no  power  or  authority  given  therein  which  would 
entitle  an  alien  defendant  whether  a  natural  person  or  corpora- 
tion, in  a  case  brought  against  him  or  it  in  this  State,  to  remove 
the  case  to  the  courts  of  the  United  States  on  the  ground  of  pre- 
judice or  local  influence.  That  part  of  the  Act  of  Congress  ap- 
proved March  3,  1887,  which  authorizes  the  removal  of  causes  on 
the  ground  of  prejudice  or  local  influence,  is  as  follows:  "And 
where  a  suit  is  now  pending,  or  may  be  hereafter  brought,  in  any 
State  Court,  in  which  there  is  a  controversy  between  a  citizen  of 
the  State  in  which  the  suit  is  brought  and  a  citizen  of  another 
State,  any  defendant,  being  such  citizen  of  another  State,  may 
remove  such  suit  into  the  Circuit  Court  of  the  United  States  for 
the  proper  district,  at  any  time  before  the  trial  thereof,  when  it 
shall  be  made  to  appear  to  said  Circuit  Court  that,  from  prejudice 
or  local  influence,  he  will  not  be  able  to  obtain  justice  in  such 
State  Court,  or  in  any  other  State  Court  to  which  the  said  de- 
fendant may,  under  the  laws  of  the  State,  have  the  right,  on 
account  of  such  prejudice  or  local  influence,  to  remove  said  cause; 
providf'd,  that  if  it  further  appear  lhat  said  suit  can  be  fully  and 
justly  determined  as  to  the  other  defendants  in  the  State  Court, 
without  being  aff'ected  by  such  prejudice  or  local  influence,  and 
that  no  pfirty  to  the  snit  will  be  prejudiced  by  a  separation  of 
the  parties,  said  Circuit  Court  may  direct  the  suit  to  be  remanded, 


District  Courts  263 

so  far  as  relates  to  such  other  defendants,  to  the  State  Court, 
to  be  proceeded  with  therein."  It  is  quite  clear  from  the  phrase- 
ology of  this  act  that  the  right  to  remove  a  cause  from  a  State 
Court,  on  the  ground  of  prejudice  or  local  influence,  is  confined 
to  cases  "in  which  there  is  a  controversy  between  a  citizen  of 
the  State  in  which  the  suit  is  brought  and  a  citizen  of  another 
State."  Citizenship  of  a  State  must  exist  before  a  removal  can 
be  had  on  that  ground.  The  word  "state,"  as  used  in  this  act, 
means  a  State  of  the  United  States.  A  citizen  of  a  territory  is 
not  a  citizen  of  a  State,  nor  is  a  citizen  of  the  District  of  Columbia. 
Aliens  and  citizen  of  territories  are  therefore  excluded,  under  this 
clause  of  the  act.  Speer,  Rem.  Causes,  §  21,  and  note  1 ;  also  Id. 
Append.  C,  where  the  author  says  the  defendant  must  be  a  citi- 
zen of  another  State  in  order  to  remove  the  case  under  clause 
4,  §  2,  of  the  act.i 


ADELBERT  COLLEGE  OF  WEST.  RESERVE  UNIV.  v. 
TOLEDO,  ETC.,  RY.  CO. 

Circuit  Court,  N.  D.  Ohio,  W.  D.     1891. 

47  Fed.  836. 

In  Equity. — Suit  to  assert  the  lien  of  certain  equipment  bonds, 
brought  by  the  Adelbert  College  of  Western  Reserve  University 
against  the  Toledo,  Wabash  &  Western  Railway  Company,  the 
Wabash  Railway  Company,  the  Wabash,  St.  Louis  &  Pacific  Rail- 
way Company,  James  R.  Jesup,  and  Isaac  H.  Knox,  as  trustees, 
George  I.  Seney,  trustee,  Solon  Humphreys  and  Daniel  A.  Lind- 
ley,  as  trustees.  Various  other  persons,  holding  other  bonds  of 
the  same  series,  were  made  parties  defendant,  and  set  up  their 
rights  by  cross-petition. 

A  removal  to  the  Federal  Court  was  obtained.  It  was  claimed 
on  removal  that  the  fact  that  the  State  Supreme  Court  had  de- 
cided the  question  involved  in  this  case  adversely  to  the  interest 
of  the  defendants,  while  the  Federal  Supreme  Court  had  decided 

1  Only   a  portion   of  the   opinion   is   reprinted. 

A  suit  brought  in  a  territorial  court,  it  was  lield  under  a  statute  similar 
to  section  28  of  the  Judicial  Code,  could  not  be  removed  into  a  Federal 
Court.  Ames  v.  Colorado  Cent.  R.  Co.,  1  Fed.  Cas.  No.  325,  p.  753,  4 
Dillon,   260    (1877).— Ed. 


264  Cases  on  Federal  Procedure 

the  same  question  favorablj'  thereto,  showed  that  there  existed 
such  prejudice  or  local  influence  that  the  petitioners  would  not  be 
able  to  get  justice  in  the  State  Court. 

^Motion  to  remand  to  State  Court  for  want  of  jurisdiction  in  this 
court  to  hear  and  determine  the  controversy  between  the  parties.^ 

Jackson,  J. — Again  it  does  not  appear  that  the  action  of  the 
presiding  judge  in  ordering  the  removal  was  rested  on  or  predi- 
cated to  any  extent  on  the  alleged  refusal  of  the  Supreme  Court 
of  Ohio  to  recognize  or  follow  the  adjudication  of  the  Supreme 
Court  of  the  United  States  in  the  Ham  Case.  This  conflict  of 
opinion  and  decision  between  said  courts  on  the  question  of  the 
lien  of  said  equipment  bonds  does  not  constitute  the  ''prejudice 
or  local  influence"  contemplated  by  the  removal  acts  of  Congress. 
The  question  passed  upon  b^^  both  courts  was  one  of  general  com- 
mercial law,  dependent  for  its  proper  solution  upon  the  proper 
construction  of  the  consolidating  agreement  under  which  the  To- 
ledo &  "Wabash  Railway  Company  was  formed,  and  on  that  ques- 
tion courts  of  concurrent  jurisdiction  might  reach  different  con- 
clusions, without  subjecting  either  to  any  imputation  of  "pre- 
judice or  local  influence."  Such  differences  of  opinion  between 
the  courts  was  certainly  not  the  "prejudice  or  local  influence" 
which  the  law  contemplates  as  furnishing  a  ground  or  reason  for 
removing  a  suit  from  one  jurisdiction  to  another.  Webster  de- 
fines "prejudice"  as  follows: 

"An  opinion  or  decision  of  mind  formed  without  due  examina- 
tion ;  prejudgment ;  a  bias,  or  leaning  towards  one  side  or  the 
other  of  a  question  from  other  considerations  than  those  belong- 
ing to  it ;  an  unreasonable  predilection  or  prepossession  for  or 
against  anything;  especially,  an  opinion  or  leaning  adverse  to 
anything,  formed  without  proper  grounds  or  before  suitable  knowl- 
edge." 

It  is  in  this  general  sense  that  the  removal  acts  use  the  word 
"prejudice,"  and  it  cannot  properly  be  applied  to  the  solemn  judg- 
ment of  the  highest  court  of  a  State  on  the  mere  ground  that  said 
judgment  differs  from  that  of  the  Supreme  Court  of  the  United 
States  on  the  same  question.  The  term  "local  influence,"  if  not 
synonymous  with  "prejudice,"  manifestly  refers  to  an  improper 
influence  exerted  by  or  existing  in  favor  of  one  side,  or  against 
tlic  oIlifT,  wliicli  will  j)rrvciit  llic  latter  from  obtaining  justice  in 

1  Tho  fa<',tH  aro  ro.statod,  and  only  a  portion  of  ilic  opinion  is  reprinted. — • 
Ed. 


District  Courts  265 

the  State  courts.  The  "prejudice  or  local  influence"  which  the 
law  meant  to  make  the  grounds  of  removal  may  relate  to  the 
person  of  the  litigant  or  the  subject-matter  of  the  litigation;  but 
in  either  ease  there  must  exist  improper  bias,  partiality,  unreason- 
able predilection,  or  hostility  in  the  local  community  or  courts, 
which  will  work  injustice,  or  prevent  the  party  seeking  a  removal 
from  obtaining  justice. 

If  in  any  case  a  State  Court's  decision  can  be  made  the  ground 
of  removal,  it  must  be  alleged  and  shown  that  such  decision  pro- 
ceeded, not  from  error  or  mistake  of  law,  but  from  that  improper 
bias  or  unreasonable  predilection  which  constitutes  the  "preju- 
dice" or  "local  influence"  contemplated  by  the  law.  The  petition 
for  removal  in  the  present  case  alleged  no  such  improper  bias  in 
respect  to  the  decision  of  the  Supreme  Court  of  Ohio  in  the  Comp- 
ton  Case,  which  it  is  said  the  courts  will  follow.^ 


CITY  OF  DETROIT  v.  DETROIT  CITY  RY.  CO. 

Circuit  Court,  E.  D.  Michigan.     1893. 

54  Fed.  1. 

In  Equity. — Bill  in  the  Circuit  Court  of  Wayne  County,  Mich., 
by  the  City  of  Detroit  against  the  Detroit  City  Railway  Com- 
pany, the  Detroit  Citizens'  Street-Railway  Company,  Sidney  D. 
Miller  and  William  A.  Muir,  trustees,  and  the  Washington  Trust 
Company  of  the  City  of  New  York.  The  Washington  Trust  Com- 
pany of  the  City  of  New  York  removed  the  cause  to  the  Federal 
Circuit  Court,  and  it  is  now  on  motion  to  remand. 

One  of  the  grounds  of  the  motion  is  to  the  effect  that  the  only 
question  at  issue  in  the  suit  is  one  of  law  and  that  such  suits  are 
not  removable  under  the  statute  relating  to  prejudice  and  local 
influence.^ 

Taft,  Circuit  Judge. — They  say  that  the  only  question  at  issue 
in  this  suit  is  one  of  law,  and  that  questions  presenting  only  ques- 

2  See  also  In  re  Breckenridge,  31  Neb.  489,  490-493,  48  N.  W.  142   (1891). 
As   to   when   prejudice    or   local   influence    exists,   see,   further,   Barltett   v. 
Gates,  117  Fed.  362  (1902).— Ed. 

1  The  facts  are   restated  and  a  portion  of  the  opinion  is  omitted. — Ed. 


266  Cases  on  Federal  Procedure 

tions  of  law  are  not  removable  under  the  statute  for  prejudice 
and  local  influence.  It  is  conceded  that  the  questions  arising  on 
the  bill  and  answer  involve  simply  the  construction  of  the  Con- 
stitution of  the  State  of  Michigan,  and  the  laws  and  ordinances 
passed  thereunder,  and  are  purely  of  law.  The  contention  of 
counsel  is  that  the  prejudice  and  local  influence  which  Congress 
had  in  mind  was  that  which  would  operate  upon  a  jury,  and  that 
it  never  could  have  supposed  that  a  State  judge  would  be  affected 
thereby  in  deciding  questions  of  law.  We  are  clear  that  this  claim 
of  counsel  cannot  be  supported.  The  local  prejudice  clause  under 
discussion  begins  with  the  words,  ''And  where  a  suit  is  now  pend- 
ing, or  which  may  hereafter  be  brought,"  etc.  The  proper  limita- 
tion to  be  put  on  the  meaning  of  this  phrase  has  been  author- 
itatively stated  by  the  Supreme  Court  in  the  case  of  In  re  Pennsyl- 
vania Co.,  137  U.  S.  451,  11  Sup.  Ct.  Rep.  141,  where  Mr.  Justice 
Bradley  said: 

"The  fourth  clause  (the  one  in  question)  describes  only  the  spe- 
cial cases  compromised  in  the  preceding  clauses.  The  initial  words 
'and  where'  are  equivalent  to  the  phrase  'and  when  in  any  such 
case.'  In  effect,  they  are  tantamount  to  the  beginning  words  of 
the  third  clause,  namely,  'and  when  in  any  suit  mentioned  in  this 
section.'  " 

The  suits  mentioned  in  this  section  are  suits  at  law  and  in 
equity.  It  necessarily  follows,  therefore,  that  the  local  prejudice 
clause  relates  to  both  suits  at  law  and  in  equity.  The  words  of  the 
clause  "at  any  time  before  the  trial  thereof,"  used  in  fixing  the 
time  within  which  the  removal  on  account  of  prejudice  or  local 
influence  can  be  made,  are  relied  on  as  indicating  that  only  suits 
at  law  can  be  removed,  because  the  word  "trial"  is  properly  used 
only  with  reference  to  such  suits.  This  view  is  refuted  by  the 
foregoing  language  of  Mr.  Justice  Bradley,  and  by  the  further 
fact  that  under  the  removal  act  of  1875,  which,  it  is  conceded, 
permitted  the  removal  of  causes  in  equity  as  well  as  at  law,  the 
same  words  are  used  to  fix  a  time  within  which  removals  under 
that  act  could  be  made.  When  the  words  "trial"  and  "hearing" 
are  used  together,  as  in  the  rcMiioval  acts  of  1866  and  1867,  the 
one  refers  to  a  trial  at  common  law  and  the  other  to  a  hearing 
on  the  merits  in  chancery  (Car  ('o.  v.  Speck,  113  U.  S.  84-86,  5 
Snp.  Ct.  Kcp-  '574)  ;  l)ut  when  the  word  "trial"  alone  is  used  it 
inclndes  both  trial  at  common  law  and  hearing  in  chancery  as  in 
the  act  of  1875. 

If  the  prejiuliee  and  local   influence  clause  applies  to  suits  in 


District  Courts  267 

equity,  then  Congress  must  have  intended  to  provide  against  the 
prejudice  of  judges  as  well  as  of  juries,  for  there  are  no  juries 
in  equity.  The  contention  on  behalf  of  complainant  is,  therefore, 
reduced  to  a  claim  by  a  judge  in  the  determination  of  issues  of 
fact,  but  not  against  injustice  done  by  him  in  deciding  issues  of 
law.  We  do  not  see  why  a  judge,  if  influenced  improperly  against 
a  party,  may  not  yield  to  such  influence  as  well  in  his  decisions 
of  legal  questions  as  in  his  conclusions  of  fact. 

The  sole  reason  of  the  framers  of  the  Constitution  for  including 
in  the  judicial  power  of  the  United  States  the  right  to  decide 
controversies  between  citizens  of  different  States  was  a  fear  of  the 
operation  of  prejudice  or  local  influence  in  the  tribunals  of  one 
State  against  a  citizen  of  another.  It  was  thereby  intended  in 
the  administration  of  justice,  both  in  determining  facts  and  in 
deciding  the  law,  to  secure  a  judiciary  independent  of  local  in- 
fluences and  surroundings.  Recognizing  this  intention  on  the  part 
of  the  framers  of  the  Constitution,  the  Federal  courts  exercise 
an  independence  of  judgment  in  deciding  many  questions  of  State 
law,  and  under  some  circumstances  decline  to  follow  the  State 
courts.  In  the  leading  case  of  Burgess  v,  Seligman,  107  U.  S. 
33,  2  Sup.  Ct.  Rep.  21,  Mr.  Justice  Bradley,  in  discussing  the 
power  and  duties  of  the  Federal  courts  in  administering  State 
laws,  spoke  for  the  Supreme  Court  as  follows: 

"The  Federal  courts  have  an  independent  jurisdiction  in  the 
administration  of  State  laws,  co-ordinate  with,  but  not  subordinate 
to,  that  of  the  State  courts,  and  are  bound  to  exercise  their  own 
judgment  as  to  the  meaning  and  effect  of  these  laws.  The  existence 
of  the  two  co-ordinate  jurisdictions  in  the  same  territory  is  peculiar, 
and  the  result  would  be  inconvenient  but  for  the  exercise  of  mutual 
respect  and  deference,  Si2ice  the  ordinary  administration  of  the 
law  is  carried  on  by  the  State  courts,  it  necessarily  happens  that 
by  the  course  of  their  decisions  certain  rules  are  established  which 
become  rules  of  property  and  action  in  the  State,  and  have  all  the 
effect  of  law,  and  which  it  would  be  wrong  to  disturb.  This  is 
especially  true  with  regard  to  the  law  of  real  estate  and  the  con- 
struction of  State  constitutions  and  statutes.  Such  established 
rules  are  often  regarded  by  the  Federal  courts,  no  less  than  by 
the  State  courts  themselves,  as  authoritative  declarations  of  what 
the  law  is;  but  where  the  law  has  not  been  thus  settled  it  is  the 
right  and  duty  of  the  Federal  courts  to  exercise  their  own  judg- 
ment, as  they  also  always  do  with  reference  to  the  doctrines  of 
commercial  law  and  general  jurisprudence.    So  when  contracts  and 


268  Cases  on  Federal  Procedure 

transactions  have  been  entered  into,  and 'rights  have  accrued  there- 
on in  a  particular  State  of  the  decisions,  or  when  there  is  no 
decision  of  the  State  tribunal,  the  Federal  courts  properly  claim 
the  right  to  adopt  their  own  interpretation  of  the  law  applicable 
to  the  case,  although  a  different  interpretation  may  be  adopted 
in  the  State  courts  after  such  rights  have  accrued.  But  even  in 
such  cases,  for  the  sake  of  harmonj-,  and  to  avoid  confusion,  the 
Federal  courts  will  lean  towards  an  agreement  of  views  with  the 
State  courts  if  the  question  seems  to  them  balanced  wnth  doubt. 
Acting  on  these  principles,  founded  as  they  are  on  comity  and 
good  sense,  the  courts  of  the  United  States,  without  sacrificing 
their  own  dignity  as  independent  tribunals,  endeavor  to  avoid,  and 
in  most  cases  do  avoid,  any  unseemly  conflicts  with  the  well-con- 
sidered decisions  of  the  State  courts.  As,  however,  the  very  object 
of  giving  to  the  national  courts  jurisdiction  to  administer  the 
laws  of  the  States  in  controversies  between  citizens  of  different 
States  was  to  institute  independent  tribunals,  which  it  might  be 
supposed  would  be  unaffected  by  local  prejudices  and  sectional 
views,  it  would  be  a  dereliction  of  their  duty  not  to  exercise  an 
independent  judgment  in  cases  not  foreclosed  by  previous  adjudi- 
cation." 

We  could  have  no  better  evidence  than  this  that  one  of  the 
objects  of  the  makers  of  the  Constitution,  in  conferring  judicial 
power  in  controversies  between  citizens  of  different  States,  was 
to  avoid  possible  injustice  to  nonresident  litigants  from  the  in- 
fluence of  local  prejudice  on  decisions  by  State  courts  on  pure 
questions  of  law.  But  it  is  said  we  are  considering  a  statute,  and 
not  the  Constitution.  That  is  true,  but  the  reason  for  conferring 
a  constitutional  power,  and  its  scope  and  object,  are  of  control- 
ling importance  in  construing  a  statute  passed  in  the  exercise  of 
the  power.  In  cases  where  the  right  to  sue  in  the  Federal  courts, 
or  the  right  to  remove  cases  to  them,  is  made  to  depend  only  on 
the  fact  of  diverse  citizenship,  Congress  merely  assumes  the  ex- 
istence of  local  prejudice,  and  provides  against  its  dangers  to  non- 
residents, without  regard  to  the  actual  fact,  while  in  the  clause 
under  discussion,  Congress  puts  on  him  who  would  enjoj'  its  bene- 
fit the  burden  of  an  afifirmative  showing.  But  in  either  case  the 
evil  souglit  to  be  avoided  by  the  act  of  Congress  was  the  same  as 
that  which  led  the  makers  of  the  Constitution  to  confer  the  power 
fo  pass  the  act, — possible  injustice  to  nonresident  litigants  from 
prejudiced  opinions  of  law  as  well  as  from  prejudiced  conclusions 
of    fact.     Xeitlier   authority   nor   Federal   statute   has   been  cited 


District  Courts  269 

which  makes  the  distinction  between  questions  of  law  and  questions 
of  fact  contended  for.  If  it  was  the  intention  of  Congress  to  so 
limit  the  right  of  removal,  it  could  have  expressed  itself  in  lan- 
guage not  to  be  mistaken,  and  would  not  have  left  the  limitation 
to  be  inferred  from  an  argumentative  construction,  which  finds  no 
basis  either  in  the  words  used  or  in  the  reason  of  the  provision. 

Counsel  contend  that,  inasmuch  as  a  decision  of  the  Wayne 
Circuit  Court  involves  only  a  question  of  law  which  the  defendant 
trust  company,  in  the  event  of  an  adverse  decree,  can  carry  to 
the  Supreme  Court  of  the  State,  no  showing  can  be  sufficient 
which  does  not  tend  to  prove  that  the  decision  of  the  Supreme 
Court  also  will  be  affected  by  prejudice  and  local  influence.  We 
do  not  agree  in  this  view.  It  rests  on  the  false  premise  that  no 
injury  is  done  to  a  party  litigant  when  a  court  of  original  juris- 
diction, swayed  by  prejudice  or  local  influence,  decides  against 
him,  if  the  case  involves  only  an  appealable  question  of  law.  He 
is  entitled,  on  general  principles,  to  have  his  rights  justly  deter- 
mined in  every  tribunal  whose  aid  or  protection  the  law  gives  him, 
no  matter  whether  the  judgment  is  to  depend  on  disputed  facts 
or  law.  It  is  an  injustice  to  him  to  be  compelled  to  appeal  to  a 
higher  court  to  right  a  wrong  done  him  by  the  prejudice  of  the 
trial  judge. 


PARKER  V.  VANDERBILT. 

Circuit  Court,  W.  D.  North  Carolina.     1905. 

136  Fed.  246. 

Pritchard,  Circuit  Judge. — This  ease  was  removed .  from  the 
Superior  Court  of  Buncombe  County  to  the  Circuit  Court  of  the 
United  States,  on  account  of  prejudice  and  local  influence,  on 
September  19,  1904.  The  plaintiff  made  a  motion  to  remand  same 
to  the  State  Court  on  the  11th  day  of  March,  1904,  upon  the  ground 
that  the  defendant  Brantlj^  was  at  the  time  of  the  institution  of 
the  suit  a  resident  of  North  Carolina ;  also  that  the  petition  was 
not  properly  verified,  and  did  not  contain  facts  sufficient  to  justify 
a  removal,  and  for  other  reasons  which  are  fully  discussed  in 
the  opinion.     *     *     * 

It  is  also  contended  that  the  defendant  is  required  to  show  that 


270  Cases  on  Federal  Procedure 

he  cannot  obtain  justice  in  the  counties  to  which  this  ease  might 
be  removed  by  the  State  Court.  This  would  be  true  if  the  de- 
fendant had  the  right,  under  the  laws  of  the  State,  to  have  his 
case  removed  to  any  of  the  contiguous  counties  for  trial,  but  no 
such  right  exists.  The  statute  of  the  State  leaves  the  question  as 
to  whether  there  shall  be  a  change  of  venue  to  the  discretion  of 
the  judge  of  such  court.  Therefore  the  defendant  does  not  have 
such  a  right  as  contemplated  by  the  statute  to  have  his  case  tried 
in  a  county  other  than  the  one  in  which  the  suit  was  instituted. 
Such  being  the  law  of  the  State  in  regard  to  a  change  of  venue, 
the  defendant  is  not  required  to  show  that  he  cannot  obtain  justice 
in  the  counties  to  which  his  case  might  be  removed  by  the  State 
Court.  Robison  v.  Hardy  (C.  C),  38  Fed.  49;  Rike  v.  Floyd  (C. 
C),  42  Fed.  247;  Smith  v.  Lumber  Co.  (C.  C),  46  Fed.  819; 
Crosby  Lumber  Co.  v.  Smith,  51  Fed.  63,  2  C.  C.  A.  97 ;  City  of 
Tacoma  v.  Wright  (C.  C),  84  Fed.  836.1 


FISK  V.  HENARIE. 

Supreme  Court  of  the  United  States.    1892. 

142  V.  8.  459,  12  S.  Ct.  207,  35  L.  Ed.  1080. 

Mr.  Chief  Justice  Fuller,  after  stating  the  case,  delivered  the 
opinion  of  the  court.^ 

After  this  case  had  been  pending  in  the  State  courts  from  No- 
vember 13,  1883,  to  August  1,  1887;  had  been  tried  three  times 
before  a  jury  in  the  Circuit  Court,  there  being  one  verdict  for 
defendants,  one  for  plaintiff  and  one  disagreement ;  and  been  heard 
in  various  phases  three  times  in  the  Supreme  Court  of  the  State, 
the  application  was  made  for  removal.  Was  this  application  in 
time?  This  question  is  to  be  determined  upon  a  proper  construc- 
tion of  section  2  of  the  Act  of  Congress  of  March  3,  1887,  for  it 
is  not,  and  could  not  be,  contended  that  the  right  of  removal  could 
then  have  been  invoked  on  the  ground  of  diverse  citizenship.  The 
application  was  filed  July  30,  1887,  and  by  its  terms  purported 

1  Only  a  portion  of  the  opinion  is  reprinted. 

If  tho  defendant  has  no  ri^ht  to  remove  the  case  to  any  lower  state  court 
where  lie  could  ^oX  an  unprejudiced  trial,  the  mere  fact  that  he  will  be  able 
to  appeal  from  the  decision  of  the  lower  court  to  the  State  Supreme  Court, 
where  the  i)ro<cc'din(,'8  will  be  unprejudi<td,  will  not  prevent  a  removal  to 
the  F.'.lcral  Court.  City  of  Detroit  v.  Detroit  City  Ry.  Co.,  54  Fed.  1,  14 
(189:{).— Kd. 

8  Only  a  jtortion  of  the  opinion  is  reprinted. — Ed. 


District  Courts  271 

to  be  made  under  the  Act  of  1887,  to  which  act  the  order  of  the 
State  Court  referred.  Indeed,  if  subdivision  3  of  section  639  of 
the  Revised  Statutes  were  repealed  by  the  Act  of  1887,  or,  since 
some  of  the  defendants  were  then  and  at  the  commencement  of  the 
suit  citizens  of  the  same  State  as  the  plaintiff,  if  a  removal  could 
be  had  at  all,  it  could  only  be  under  the  act  of  1887, 

The  Judiciary  Act  of  1789,  1  Stat.  c.  20,  §  12,  pp.  73,  79,  pro- 
vided that  a  party  entitled  to  remove  a  cause  should  file  his  peti- 
tion for  such  removal  "at  the  time  of  entering  his  appearance 
in  such  State  Court,"    1  Stat.  79. 

The  Act  of  July  27,  1866,  relating  to  separable  controversies, 
provided  that  "the  defendant  who  is  a  citizen  of  a  State  other 
than  that  in  which  the  suit  is  brought,  may,  at  any  time  before 
the  trial  or  final  hearing  of  the  cause,  file  a  petition  for  the  re- 
moval of  the  cause,"  etc.    14  Stat.  306,  c.  288. 

The  Act  of  March  2,  1867,  relating  to  removal  on  the  ground  of 
prejudice  or  local  influence,  provided  that  the  plaintiff  or  defend- 
ant "may,  at  any  time  before  the  final  hearing  or  trial  of  the 
suit,  file  a  petition  in  such  State  Court  for  the  removal  of  the 
suit,"  etc.     14  Stat.  558,  c.  196. 

The  first  subdivision  of  section  639  of  the  Revised  Statutes  was 
a  re-enactment  of  the  12th  section  of  the  Judiciary  Act;  the 
second  subdivision,  of  the  Act  of  July  27,  1866;  and  the  third 
subdivision,  of  the  Act  of  March  2,  1867;  and  this  subdivision 
adopted  the  phraseology  of  the  Act  of  July  27,  1866,  namely: 
"At  any  time  before  the  trial  or  final  hearing"  of  the  suit. 

The  Act  of  March  3,  1875,  said  nothing  about  prejudice  or  local 
influence,  but  provided  in  the  case  of  diverse  citizenship  that  the 
party  desiring  to  remove  a  cause  should  make  and  file  his  peti- 
tion in  the  State  Court  "before  or  at  the  term  at  which  said 
cause  could  be  first  tried  and  before  the  trial  thereof."  18  Stat. 
470,  471,  e.  137. 

This  act  repealed  the  first  and  second  subdivisions  of  section 
639  of  the  Revised  Statutes,  but  left  subdivision  3  unrepealed. 
Baltimore  &  Ohio  Railroad  v.  Bates,  119  U.  S.  464,  467. 

In  Insurance  Company  v.  Dunn,  19  Wall.  214,  it  was  held  that 
the  word  "final"  as  used  in  the  phrase  "at  any  time  before  the 
final  hearing  or  trial  of  the  suit"  applied  to  the  word  "trial"  as 
well  as  to  the  word  * '  hearing. ' '  And  it  has  been  often  ruled  that  if 
the  trial  court  had  set  aside  a  verdict  and  granted  a  new  trial,  or 
if  the  Appellate  Court  had  reversed  the  judgment  and  remanded 
the  case  for  trial  de  novo,  it  was  not  too  late  to  apply  to  remove 


272  Cases  on  Federal  Procedure 

the  cause  under  the  Act  of  1867  and  subdivision  3.  Vannevar  v. 
Bryant,  21  Wall.  41;  Jifkins  v.  Sweetzer,  102  U.  S.  177;  Balti- 
more &  Ohio  Railroad  v.  Bates,  119  U.  S.  464,  467,  and  cases  cited. 
But  these  and  like  decisions  were  inapplicable  to  proceedings  under 
the  Act  of  1875,  as  the  petition  was  thereby  required  to  be  filed 
"before  or  at  the  term  at  which  said  cause  could  be  first  tried 
and  before  the  trial  thereof."  This  has  been  construed  to  mean 
the  first  term  at  which  the  cause  is  in  law  triable — the  first  term 
in  which  the  cause  would  stand  for  trial  if  the  parties  had  taken 
the  usual  steps  as  to  pleadings  and  other  preparations;  and  it 
has  also  been  decided  that  there  cannot  be  a  removal  after  the 
hearing  on  a  demurrer  to  a  complaint  because  it  does  not  state 
facts  sufficient  to  constitute  a  cause  of  action.  Gregory  v.  Hart- 
ley, 113  U.  S.  742,  746;  Alley  v.  Nott,  111  U.  S.  472;  Laidly  v. 
Huntington,  121  U.  S.  179. 

The  Act  of  March  3,  1887,  24  Stat.  552,  c.  373,  and  also  as 
corrected  by  the  Act  of  August  13,  1888,  25  Stat.  433,  435,  c.  866, 
provided  that  "any  defendant,  being  such  citizen  of  another  State, 
may  remove  such  suit  into  the  Circuit  Court  of  the  United  States 
for  the  proper  district,  at  any  time  before  the  trial  thereof,  when 
it  shall  be  made  to  appear  to  said  Circuit  Court  that  from  prej- 
udice or  local  influence  he  will  not  be  able  to  obtain  justice  in 
such  State  Court,  or  in  any  other  State  Court  to  which  the  said 
defendant  may,  under  the  laws  of  the  State,  have  the  right,  on 
account  of  such  prejudice  or  local  influence,  to  remove  said  cause." 

In  view  of  the  repeated  decisions  of  this  court  in  exposition 
of  the  acts  of  1866,  1867  and  1875,  it  is  not  to  be  doubted  that 
Congress,  recognizing  the  interpretation  placed  on  the  word 
"final,"  in  the  connection  in  which  it  was  used  in  the  prior  acts, 
and  the  settled  construction  of  the  Act  of  1875,  deliberately 
changed  the  language,  "at  any  time  before  the  final  hearing  or 
trial  of  the  suit,"  or  "at  any  time  before  the  trial  or  final  hear- 
ing of  the  cause,"  to  read:  "at  any  time  before  the  trial  thereof,'* 
as  in  Die  Act  of  1875,  wbicli  rcfiuircd  1he  petition  to  be  filed  be- 
fore 01"  at  the  term  at  which  Iho  ciinso  could  first  be  tried,  and 
Ijcforc  the  trial  thereof.     *     *     * 

Wo  ;ii('  of  opinion  that  the  application  for  removal  came  too 
late.     Tlio  jndginont  must   Ihoroforo  be 

Ffcvcrscd,  and  llic  cause  j-cmanded  1o  Iho  Circuit  Court,  with 
a  (lircflion  to  remand  i1  to  Ihe  Slate  Court. 

.Mi{.  .Ii  sTici;  IIaki.an,  willi  whom  eoncui-i-ed  Mr.  Justice  Field, 
dissenting. 


District  Courts  273 

Mr.  Justice  Field  and  myself  do  not  concur  in  the  construc- 
tion which  the  court  places  upon  the  Act  of  1887. 

Section  three  of  that  act,  requiring  the  petition  for  removal 
to  be  filed  in  the  State  Court,  "at  the  time,  or  at  any  time  before 
the  defendant  is  required  by  the  laws  of  the  State  or  the  rule  of 
the  State  Court  in  which  suit  is  brought  to  answer  or  plead  to 
the  declaration  or  complaint  of  the  plaintiff,"  excepts  from  its 
operation  the  cases  mentioned  in  the  last  clause  of  section  two, 
namely,  those  in  which  a  removal  is  asked  upon  the  ground  of 
prejudice  or  local  influence.  As  to  the  latter  cases,  the  statute 
provides  that  the  removal  may  be  had,  upon  a  proper  showing,  ' '  at 
any  time  before  the  trial,"  This  means,  at  any  time  before  a 
trial  in  which,  by  a  final  judgment,  the  rights  of  the  parties  are 
determined.  Under  the  Act  of  1887,  there  can  be  no  removal, 
upon  the  ground  of  prejudice  or  local  influence,  unless  it  be  made 
to  appear  to  the  Circuit  Court  of  the  United  States  that,  on  ac- 
count of  such  prejudice  or  local  influence,  the  defendant  citizen 
of  another  State  cannot  obtain  justice  in  the  State  courts.  The 
existence  of  such  prejudice  or  local  influence  is  often  disclosed 
by  a  trial  in  the  State  Court  in  which  the  verdict  or  judgment 
is  set  aside.  The  fact  of  prejudice  or  local  influence  may  be  es- 
tablished by  overwhelming  evidence;  still,  under  the  decision  of 
the  court,  there  can  be  no  removal  if  the  application  for  removal 
be  not  made  before  the  first  trial.  We  do  not  mean  to  say  that 
when  a  trial  is  in  progress  the  cause  may  be  removed  before  its 
termination,  even  upon  the  ground  of  prejudice  or  local  influ- 
ence. But,  if  at  the  time  the  application  is  made  the  cause  is 
not  on  trial  and  is  undetermined,  that  is,  has  not  been  effectively 
tried,  the  Act  of  1887,  in  our  judgment,  authorizes  a  removal,  on 
proper  showing,  upon  the  ground  of  prejudice  or  local  influence, 
although  there  may  have  been  a  trial,  resulting  in  a  verdict  which 
has  been  set  aside. 

The  error,  we  think,  in  the  opinion  of  the  court,  is  in  applying 
to  the  Act  of  1887  the  decisions  under  the  Act  of  1875,  The 
words  in  the  latter  act  limiting  the  time  within  which  the  applica- 
tion for  a  removal  must  be  made — "before  or  at  the  term  at  which 
said  cause  could  be  first  tried,  and  before  the  trial  thereof" — 
necessarily  meant,  as  this  court  has  held,  the  first  trial,  whether  it 
resulted  in  a  verdict  or  not,  and  although  the  verdict  and  judg- 
ment may  have  been  set  aside ;  because  the  express  requirement  was 
that  the  application  for  removal  must,  in  any  event,  be  made  be- 
Wheaton  C,  F.  P.— 18 


274  Cases  on  Federal  Procedure 

fore  or  at  the  term  at  which  said  cause  could  be  first  tried.  No 
such  requirement  is  found  in  the  Act  of  1887,  in  respect  to  cases 
sought  to  be  removed  upon  the  ground  of  prejudice  or  local  in- 
fluence. While,  in  respect  to  all  cases  of  removal  except  those 
upon  the  ground  of  prejudice  or  local  influence,  the  latter  statute 
provides  that  the  application  shall  be  made  at  the  time,  or  at  any 
time  before  the  defendant  is  required  by  the  laws  of  the  State, 
or  the  rule  of  the  State  Court  in  which  the  suit  is  brought,  to 
answer  or  plead  to  the  declaration  or  complaint  of  the  plaintiff, 
the  removal,  because  of  prejudice  or  local  influence,  may  be  ap- 
plied for  "at  any  time  before  the  trial  thereof."  This  difference 
in  the  language  of  the  two  acts  means,  we  think,  something  more 
than  the  court  attributes  to  it.  Congress  could  hardly  have  in- 
tended to  give  the  defendant  citizen  of  another  State  simply  the 
time  between  his  answering  or  pleading,  and  the  calling  of  his  case 
for  the  first  trial  thereof,  to  determine  whether  he  should  apply 
for  a  removal  upon  the  ground  of  prejudice  or  local  influence. 
In  our  judgment,  it  meant  to  give  the  right  of  removal,  upon 
such  ground,  at  anj^  time,  w^hen  the  case  is  not  actually  on  trial, 
and  when  there  is  in  force  no  judgment  fixing  the  rights  of  the 
parties  in  the  suit.  If  a  case  is  open  for  trial,  on  the  merits,  an 
application  for  its  removal  before  that  trial  commences  is  made 
''before  the  trial  thereof."  In  ci^sr  opinion,  the  interpretation 
adopted  by  the  court  defeats  the  purpose  which  Congress  had  in 
view  for  the  protection  of  persons  sued  elsewhere  than  in  the  State 
of  which  they  are  citizens.^ 


WHELAN  V.  NEW  YORK  L.  E.  &  W.  R.  CO. 

Circuit  Court,  N.  I).  Ohio,  E.  D.     1888. 

35  Fed.  849,  1  L.  R.  A.  65. 

Jackson',  J.  *  *  *  It  is  further  contoiulod  that  no  proper  pro- 
ceedings have  boon  had  or  taken  by  tlie  defendant,  even  conceding 

3  In  ncconl  with  thf  (li.ssfnting  o])inioii,  we  Fisk  v.  Honarie,  32  Fed.  417, 
427-428  (18H7;;  IltiskinH  v.  Cliiicinnati,  N.  O.  &  T.  \\  Ky.  Co.,  M  Fed.  504, 
r>()fi-.'J07,  :\  \..  H.  A.  rATi,  MH  (IKHO);  Hrodlicad  v.  Sliooinaker,  44  Fed.  518, 
.'i2:<-526,  11    I..  H.  A.  567,  569-572   (1H!)0). 

Ah  to  wlien  it  miiHt  h(!  sliown  tliat  tlic  iircJii<lico  actually  existed,  see 
Metroi.f.litnri  Life  InH.  C;o.  of  New  York  v.  lOMiier,  44  Mich.  144,  (i  N.  W. 
201    (1880).— Ed. 


District  Courts  275 

its  right  of  removal,  to  effect  such  removal.  By  the  third  section  of 
the  Act  of  1887  the  steps  required  to  be  taken  in  removal  eases 
generally  are  indicated,  but  that  section  excepts  from  its  operation 
cases  sought  to  be  removed  on  the  ground  of  local  prejudice,  in 
respect  to  which  clause  4  of  amended  section  2  prescribed  no  mode 
or  method  of  effecting  that  class  of  removals.  What  procedure 
may,  then,  be  adopted  by  the  party  seeking  or  entitled  to  remove 
under  this  clause?  In  conferring  the  right  Congress  certainly  in- 
tended that  some  process  for  its  exercise  should  be  within  the 
reach  of  the  party  so  entitled.  We  think  the  method  or  procedure 
for  effectuating  the  right  so  conferred  by  said  clause  may  be  found 
in  the  two  paragraphs  of  section  639,  Rev.  St.,  which  succeed  the 
third  subdivision  of  said  section.  These  two  paragraphs  prescrib- 
ing the  method  of  accomplishing  removals  are  not  in  conflict  with 
the  Act  of  1887,  and  may  therefore  be  considered  as  still  in  force, 
and  as  furnishing  the  proper  and  appropriate  remedy  to  be  em- 
ployed by  the  party  seeking  a  removal,  and  in  making  it  "appear 
to  said  Circuit  Court  that  from  prejudice  or  local  influence"  he 
will  not  be  able  to  obtain  justice  in  the  State  courts.  It  is  not 
indicated,  in  the  Act  of  1887,  how,  or  in  what  manner,  the  fact 
that  the  removing  party  cannot  obtain  justice  in  the  local  courts 
on  account  of  such  prejudice  or  local  influence  shall  be  made  "to 
appear"  to  the  Circuit  Court.  Judge  Deady,  in  Fisk  v.  Henarie, 
32  Fed.  Rep.  417-421  (Nov.  29,  1887),  held  that  the  last  clause 
of  section  639,  Rev.  St.,  which  immediately  follows  subdivision 
3  of  said  section,  might  reasonably  be  looked  to  as  furnishing  the 
machinery  for  making  it  "appear  to  the  Circuit  Court  that  the 
petitioning  party  could  not  obtain  justice  in  the  State  Court  be- 
cause of  prejudice  or  local  influence.  If  this  suggestion  of  that 
learned  judge,  in  which  I  concur,  is  not  deemed  correct,  then,  in 
the  absence  of  all  provision  as  to  the  method  or  mode  of  present- 
ing the  application  for  removal,  this  court  would  be  left  free  to 
adopt  proper  and  suitable  rules,  prescribing  and  regulating  the 
practice  in  such  cases ;  and  such  rules  would  naturally  be  made 
to  conform  to  the  practice  and  procedure  heretofore  in  force  in 
like  cases.  In  either  view  of  the  subject,  we  think  the  mode 
adopted  by  the  defendant  in  this  case  is  not  open  to  any  serious 
objection.  A  formal  petition,  properly  sworn  to,  was  duly  pre- 
sented to  this  court,  setting  forth  all  the  conditions  required  by 
the  act  to  entitle  said  defendant  to  remove  the  suit.  This  peti- 
tion was  accompanied  and  supported  by  the  affidavit  of  the  proper 
oflScer  of  the  defendant  company,  stating,  not  what  the  affiant  had 


276  Cases  on  Federal  Procedure 

reason  to  and  did  believe  in  respect  to  the  existence  of  local  prej- 
udice, but  in  direct  terms,  and  in  the  very  language  of  the  act, 
"that  from  prejudice  and  local  influence  said  railroad  company 
will  not  be  able  to  obtain  justice  in  said  courts  of  common  pleas, 
or  in  any  other  State  Court  to  which  it  has,  under  laws  of  the 
State  of  Ohio,  a  right,  on  account  of  such  prejudice  or  local  influ- 
ence, to  remove  said  cause,"  etc.  This  made  a  prima  facie  showing 
as  to  what  was  required  "to  be  made  to  appear  to  the  Circuit 
Court." 

But  it  is  insisted  on  behalf  of  the  plaintiff  that  this  is  not  a 
sufficient  showing  to  warrant  this  court  in  declaring  that  said  de- 
fendant was  entitled  to  remove  the  suit,  and  in  assuming  jurisdic- 
tion thereof.  His  counsel  claim  that  the  fact  of  prejudice  or  local 
influence  which  must  be  made  "to  appear"  to  the  Circuit  Court 
as  one  of  the  conditions  on  which  the  right  of  removal  depends, 
involves  a  judicial  investigation ;  that  there  can  be  no  ex  parte 
action  in  the  matter ;  and  that  in  such  cases  the  plaintiff  is  entitled 
to  notice  of  the  application,  and  an  opportunity  to  contest  and 
put  in  issue  the  grounds  on  which  the  removal  is  sought.  In  other 
words,  that  he  has  the  right  under  said  provision  of  the  act  to 
make  up  an  issue  on  the  question  of  prejudice  or  local  influence, 
and  have  this  court  formally  try  that  issue  before  determining 
whether  it  will  sanction  the  removal  and  assume  jurisdiction.  The 
plaintiff,  as  a  part  of  his  motion  to  remand,  denies  the  existence 
of  such  prejudice  or  local  influence,  and  demands  a  trial  of  that 
issue.  If  he  is  entitled  to  have  such  a  preliminary  trial,  his  motion 
to  remand  would,  of  course,  liave  to  await  the  result  of  that  in- 
vestigation, unless  other  grounds  exist  on  which  to  rest  the  motion. 
It  is  conceded  by  counsel  for  plaintiff  that  by  the  old  law  and 
the  practice  under  it  the  State  courts  to  which  applications  for 
removal  were  addressed  never  entered  or  were  authorized  to  enter 
upon  such  an  investigation  as  he  herein  demands  of  this  court, 
before  taking  action  thereon.  Under  the  third  subdivision  of  sec- 
lion  639,  Rev.  St.,  based  on  the  Act  of  March  2,  1867,  amending 
the  Act  of  July  27,  1866,  the  general  statement  made  in  the  affi- 
davit of  the  petitioners  was  considered  sufficient,  without  any 
(let ailed  setting  forth  of  the  facts  which  constituted  the  reasons 
of  his  belief,  lie  was  not  required  to  prove  these  statements  as 
facts,  or  affirmatively  to  show,  except  by  the  affidavit,  that  he 
could  not  obtain  justice  in  the  State  Court.  It  was  always  held 
to  be  enough  if,  under  oath,  lie  stated  the  reasons  wliich  the  stat- 
ute assigned  as  the  ground  for  the  removal.     Bowen  v.  Chase,  7 


District  Courts  277 

Blatchf.  255.  A  ptu-ty  may  always,  in  proper  way  and  time,  put 
in  issue  jurisdictional  facts,  such  as  citizcnsliip  of  the  opposing 
side,  and  rightfully  demand  a  trial  thereon ;  but  statutory  require- 
ments, which  form  a  part,  even  an  indispensable  part,  of  the 
process  of  removing  a  suit  from  State  to  Federal  courts,  in  any 
or  all  of  the  cases  mentioned  in  the  last  or  former  acts  of  Con- 
gress, while  they  must  be  complied  W'ith  in  order  to  perfect  the 
right  to  remove,  are  not  to  be  confounded  with  jurisdictional  facts 
on  which  a  trial  by  proper  pleadings  may  be  demanded.  The  right 
to  removal  depends  upon  the  statute  giving  tlie  authority  therefor, 
and  not  upon  the  legislation  which  defines  the  original  jurisdiction 
of  the  Circuit  courts  of  the  United  States,  and  should  not  there- 
fore be  restricted  or  limited  by  the  latter  legislation.  Green  v. 
Custard,  23  How.  484,  and  Bushnell  v.  Kennedy,  9  Wall.  387. 

In  conferring  upon  the  Circuit  Court  of  the  United  States  the 
authority  to  act  upon  the  application  for  removal  of  suits  from 
State  courts  Congress  certainly  never  intended  to  make  the  ques- 
tion as  to  the  existence  or  non-existence  of  prejudice  or  local  in- 
fluence, which  would  prevent  a  non-resident  citizen  defendant  from 
obtaining  justice  in  the  local  courts,  a  jurisdictional  fact,  such  as 
would  entitle  the  side  opposing  the  removal  to  dispute  the  truth, 
and  put  the  matter  in  issue  for  formal  trial.  The  requirement  of 
the  statute  that,  under  certain  conditions  therein  stated,  a  party 
defendant  may  have  the  suit  removed  to  this  court  "when  it  shall 
be  made  to  appear  to  said  Circuit  Court  that  from  prejudice  or 
local  influence  he  wall  not  be  able  to  obtain  justice  in  such  State 
Court,"  constitutes  nothing  more  than  a  part  of  the  process  of 
removing  the  suit.  Steps  forming  a  part  of  such  process  of  re- 
moval under  no  previous  statute  were  ever  regarded  as  issuable; 
and  the  subject-matter  of  a  preliminary  trial,  before  application 
for  removal,  could  be  properly  acted  upon.  The  distinction  be- 
tween jurisdictional  facts,  properly  speaking,  which  may  be  made 
the  subject  of  issue  or  trial,  and  model  and  formal  requirements 
to  the  exercise  of  the  right  of  removal,  is  clearly  pointed  out  by 
Mr.  Justice  Bradley,  speaking  for  the  court,  in  Ayers  v.  Watson, 
113  U.  S.  597,  598,  5  Sup.  Ct.  Rep.  641.  Model  requirements  and 
conditions  prescribed  by  statute  in  order  to  exercise  the  right  of 
removal  may  be  waived,  but  jurisdictional  facts  proper  cannot  be. 
French  v.  Hay,  22  Wall.  238 ;  Ayers  v.  Watson,  113  U.  S.  594,  5 
Sup.  Ct.  Rep.  641 ;  Railroad  Co.  v.  Hart,  114  U.  S.  654,  5  Sup. 
Ct.  Rep.  1127,  Railroad  Removal  Cases,  115  U.  S.  1,  5  Sup.  Ct. 
Rep.   1113.      The   construction  which  plaintiffs'   counsel   contend 


278  Cases  on  Federal  Procedure 

should  be  placed  upon  this  provision  of  the  act  would  be  a  radical 
departure  from  the  judicial  legislation  of  Congress  since  the  foun- 
dations of  the  Government  and  of  the  practice  thereunder,  and 
would  involve  on  the  part  of  this  court  the  exercise  of  the  most 
unseemly  and  indelicate  functions  and  duties,  which  could  not 
fail  to  excite  jealousies,  and  create  hostilities  against  the  Federal 
judiciary,  and  disturb  that  comity  and  respectful  consideration 
which  should  ever  exist  between  the  courts  of  the  United  States. 
It  is  urged  by  plaintiffs'  counsel  that  the  provision  for  removing 
the  suit,  "when  it  shall  be  made  to  appear  to  said  Circuit  Court," 
are  new  words  not  previously  used  in  any  statute  on  this  subject, 
and  should  be  interpreted  according  to  their  common  and  usual 
signification;  being  evidently  employed  for  the  purpose  (as  con- 
tended) of  requiring  a  finding  by  the  court  upon  the  evidence 
taken  according  to  the  form  of  law,  and  in  such  manner  that 
both  sides  can  be  heard.  This  position,  which  is  only  a  restatement 
of  the  proposition  already  noticed,  assumes  that  the  question  of 
local  prejudice  and  the  right  to  remove  the  suit  therefore  is  a 
proceeding  between  the  parties  to  the  action;  that  the  right  of 
removal  involves  a  matter  of  controversy  between  the  plaintiff 
and  the  defendant  seeking  such  removal.  This  assumption  is  not 
well  founded;  neither  is  it  correct,  as  claimed,  that  the  words, 
"when  it  shall  be  made  to  appear  to  said  Circuit  Court,"  are  so 
new  and  different  from  those  previously  employed  in  the  legis- 
lation of  Congress  on  the  subject  of  removals,  as  to  indicate  an 
intention  to  completely  change  the  method  and  practice  in  effect- 
ing removals. 

The  twelfth  section  of  the  Judiciary  Act  of  1789  provided  that 
"if  a  suit  be  commenced  in  a  State  Court  against  an  alien  or  by 
a  citizen  of  the  State  in  which  the  suit  is  brought  against  a  citizen 
of  another  State,  and  the  matter  in  dispute  exceeds  the  aforesaid 
sum  of  $500,  exclusive  of  costs,  to  be  made  to  appear  to  the  satis- 
faction of  the  court,"  the  defendant  part}'  might,  on  entering  his 
appearance,  and  by  the  process  specified  in  the  section,  cause  the 
suit  to  be  removed  "for  trial  to  the  next  Circuit  Court  to  be  held 
in  the  district  where  the  suit  is  ixMuling. "  While  this  section  was 
in  force,  Longest  sued  Gordon  in  the  State  Court  of  Kentucky. 
On  entering  his  appearance,  the  defendant  filed  his  petition  to 
remove  tiie  cause  to  tlie  (.'ircuit  Court  of  the  United  States  for  the 
District  of  Kentucky,  on  tlie  ground  that  he  was  a  citizen  of 
Pennsylvania  and  the  plaintiff  a  citizen  of  Kentucky.     The  citi- 


District  Courts  279 

zenship  of  the  parties,  as  alleged,  was  admitted ;  but  the  plaintiff 
resisted  the  removal,  and  the  State  Court  refused  to  allow  it  on 
the  ground  that  "it  did  not  appear  to  its  satisfaction  that  the 
amount  in  controversy  exceeded  $500  exclusive  of  costs."  The 
Supreme  Court  of  the  United  States,  in  Gordon  v.  Longest,  16 
Pet.  97,  held  this  action  of  the  State  Court  was  erroneous.  The 
plaintiff,  in  his  declaration  or  petition,  having  laid  his  damages 
at  $1,000,  the  State  Court  could  not  properly  go  into  a  consider- 
ation of  the  amount  involved  in  order  to  be  satisfied  that  it  ex- 
ceeded $500  before  allowing  the  prayer  of  the  petition  for  re- 
moval. Again,  by  section  643,  Rev.  St.,  embodying  parts  of  acts 
of  Congress  enacted  in  1833,  1866,  and  1871,  relating  to  the  re- 
moval of  civil  suits  or  criminal  prosecutions  commenced  in  State 
courts  against  revenue  officers  of  the  United  States,  or  against 
officers  acting  under  the.  authority  of  Federal  election  laws,  it  is 
provided,  among  other  things  (paragraph  7),  that  if,  upon  the  re- 
moval of  such  suit  or  prosecution,  "it  is  made  to  appear  to  the 
Circuit  Court"  that  no  copy  of  the  record  and  proceedings  therein 
in  the  State  Court  can  be  obtained,  the  Circuit  Court  may  allow 
and  require  the  plaintiff  to  proceed  de  novo,  etc.  It  would  hardly 
be  asserted  that  before  the  Circuit  Court  could  require  the  plain- 
tiff to  proceed  de  novo  under  this  provision  of  the  statutes,  that 
it  would  be  compelled  to  enter  upon  a  formal  investigation  or 
trial  of  the  question  whether  a  copy  of  the  State  record  could 
be  obtained.  Under  this  section  the  Circuit  Court  to  which  the 
defendant  seeking  the  removal  presents  his  petition  in  the  first 
instance,  decided  every  question  relating  to  the  sufficiency  of  the 
petition,  affidavit,  and  accompanying  certificate,  and  its  own  ju- 
risdiction in  the  matter.  Denniston  v.  Draper,  5  Blatchf.  336. 
And  if  the  petition,  upon  its  face,  shows  a  case  within  the  terms 
of  the  section,  the  suit  or  prosecution  is  ipso  facto  removed  into 
the  Circuit  Court,  and  the  jurisdiction  of  the  State  Court  is  at  an 
end.  It  may  be  remarked  in  passing,  that  this  section,  whose 
constitutionality  was  upheld  in  Tennessee  v.  Davis,  100  U.  S.  257, 
applied  both  to  civil  and  criminal  cases,  and  included  any  case 
that  comes  within  its  terms,  without  reference  to  the  amount  in 
dispute,  if  the  suit  be  of  a  civil  nature.  Wood  v.  Matthews,  2 
Blatchf.  370.  And  the  suit  or  prosecution,  when  actually  removed 
from  the  State  Court  by  the  defendant's  officer,  goes  as  a  whole  to 
the  Circuit  Court,  with  all  the  parties  thereto.  Fisk  v.  Railroad 
Co.,  6  Blatchf,  362.     It  will  be  noticed  that  the  fourth  clause  of 


280  Cases  on  Federal  Procedure 

the  second  amended  section  of  the  Act  of  1887  has  several  fea- 
tures in  common  with  this  section  of  the  Fvcvised  Statutes.  But 
again,  by  section  5  of  the  Act  of  March  3,  1875,  it  is  provided 
"that  if,  in  any  suit  commenced  in  the  Circuit  Court,  or  removed 
from  a  State  Court  to  a  Circuit  Court,  of  the  United  States,  it 
shall  appear  to  the  satisfaction  of  said  Circuit  Court,  at  any  time 
after  such  suit  has  been  brought  or  removed  thereto,  that  such 
suit  does  not  reallj^  and  substantially  involve  a  dispute  or  con- 
troversy properly  within  the  jurisdiction  of  said  Circuit  Court," 
etc.,  it  shair  proceed  no  further  therein,  but  shall  dismiss  or  re- 
mand the  same.  Here  the  language  is,  "if  it  shall  appear  to  the 
satisfaction  of  said  Circuit  Court"  that  certain  jurisdictional  facts 
are  wanting,  the  court  is  required  to  proceed  no  further,  but  these 
terms  were  never  held  to  impose  upon  the  court  the  duty  of  try- 
ing any  or  all  collateral  facts  or  issues  that  could  possibly  be 
raised  touching  the  steps  or  proceedings  had  in  effecting  removals, 
which  fell  short  of  the  question  of  its  actual  jurisdiction. 

By  the  fourth  clause  of  amended  section  2  of  the  Act  of  1887 
the  removal  is  to  be  had  "when  it  shall  be  made  to  appear  to  said 
Circuit"  that  such  prejudice  or  local  influence  exists  in  the  State 
Court  or  courts  as  will  prevent  the  petitioning  defendant,  being 
a  citizen  of  a  State  other  than  that  in  which  the  suit  is  brought 
from  obtaining  justice.  This  certainly  does  not  properly  involve 
or  require  the  investigation  and  judicial  establishment  of  a  fact 
which  the  plaintiff  in  the  suit  is  given  the  right  to  controvert. 
The  statute  makes  no  provision  for  giving  notice  to  the  plaintiff  of 
the  application  to  remove,  and  the  petitioning  party  has  not  here- 
tofore been  required,  either  by  the  statute  or  the  practice  of  the 
courts,  to  which  petitions  for  removal  were  addressed,  to  give  any 
notice  to  the  adverse  party  of  his  application  for  such  removal 
of  a  suit  from  the  State  Court.  Wehl  v.  Wald,  17  Blatchf.  342^ 
and  Stevens  v.  Richardson,  9  Fed.  Rep,  194,  where  it  is  said  by 
Judge  Blatchfori)  that  "it  has  always  been  held  in  this  court 
that  no  notice  (of  tlic  jipprKvition  for  removal)  was  necessary;" 
cifiiig  Fisk  V.  Railroad  Co.,  8  Hhilchf.  243.  No  notice  of  the  ap- 
plication tor  removal  being  required,  it  results  necessarily  that 
the  court  which  acts  upon  such  application  must  proceed  upon 
the  ex  parte  prima  facie  showing  made  by  the  petition  and  affi- 
davit accoiiipaiiying  \\\o  same,  leaving  to  the  adverse  party  the 
right  to  finest  ion  by  propci-  plea  in  the  Circuit  Court  the  strictly 
jurisdictional    I'ai-ts   ])r<'scnl('(l    in    tlm   ap|)li('ation.      Barry  v.   Ed- 


District  Courts  281 

munds,  116  U.  S.  559,  6  Sup.  Ct.  Rep.  501,  relied  on  by  the  plain- 
tiff's counsel,  is  not  in  conflict  with  these  propositions.  In  that 
case  the  court  does  recognize  that  the  jurisdictional  facts  em- 
braced in  section  5  of  the  Act  of  1875  may,  by  proper  pleading, 
and  at  the  proper  time,  be  put  in  issue,  and  a  trial  had  thereon. 
That  section  created  certain  new  jurisdictional  facts  proper  on 
which  issue  could  be  taken  by  the  adverse  party.  But  no  such 
effect  can  be  given  to  the  requirements  of  the  present  law  in  desig- 
nating the  time  and  mode  of  effecting  the  removal. 

Under  this  Act  of  1887  the  Circuit  Court  is  invested  with  the 
authority  heretofore  conferred  upon  and  exercised  by  the  State 
courts  in  acting  upon  application  for  removal,  and  has  imposed 
upon  it  the  further  authority  of  directing  the  suit  to  be  remanded 
so  far  as  relates  to  defendants  other  than  the  one  applying  for 
the  removal,  "when  it  appears"  to  said  court  that  said  suit  can 
be  fully  and  justly  determined  as  to  such  other  defendants  in  the 
State  Court,  without  being  affected  by  local  prejudice,  and  no 
party  to  the  suit  will  be  prejudiced  by  a  separation  of  the  parties. 
Can  it,  with  any  show  of  propriety  or  reason,  be  asserted  that  this 
proviso  to  the  fourth  clause  of  said  section  contemplates  a  further 
or  additional  trial  inter  partes  of  the  question  whether  such  separa- 
tion of  the  parties  shall  be  directed,  and  the  suit  remanded  as  to 
some  of  the  defendants  and  retained  as  to  others?  This  language 
of  the  proviso,  "if  it  further  appear"  (to  said  Circuit  Court), 
indicates  a  judicial  investigation  and  finding,  just  as  much  as  the 
words  used  in  the  first  part  of  the  clause,  "when  it  shall  be  made 
to  appear  to  said  Circuit  Court."  The  one  no  more  implies  a 
proceeding  between  the  parties  than  the  other ;  and  it  was  clearly 
not  the  intention  of  Congress  to  require  a  preliminary  trial  of 
the  question  as  to  separating  the  parties  and  remanding  the  suit, 
so  far  as  relates  to  some  of  the  defendants,  while  retaining  it  as 
to  others.  Such  a  practice  would  involve  innumerable  collateral 
issues,  and  lead  to  inextricable  confusion  in  the  due  and  orderly 
administration  and  disposition  of  the  business  of  the  court.^ 

1  Only  a  portion  of   the   opinion   is   reprinted. 

Compare,  as  to  the  necessity  of  giving  notice,  Carson  &  Band  Lumber  Co. 
V.  Holtzclaw,  39  Fed.  578,  580  (1889);  Herndon  v.  Southern  R.  Co.,  73  Fed. 
307.  (1896). 

As  to  the  right  of  the  plaintiff,  who  was  not  given  notice,  to  contest  the 
allegations  of  the  petition  upon  which  a  removal  was  obtained,  see  Ellison 
V.  Louisville  &  N.  R.  Co.,  112  Fed.  805,  50  C.  C.  A.  530   (1902).— Ed. 


282  Cases  on  Federal  Procedure 

In  re  PENNSYLVANIA  CO. 
Supreme  Court  of  the  United  States.     1890. 
137  U.  S.  451,  11  8.  Ct.  141,  34  L.  Ed.  738. 

Mr.    Justice    Bradley    delivered    the    opinion    of   the    court. 

*     *     * 

There  is  another  question  raised  in  this  ease,  on  which  it  is 
proper  that  we  should  express  our  opinion.  It  arises  upon  the 
following  words  of  the  act:  "When  it  shall  be  made  to  appear 
to  said  Circuit  Court  that  from  prejudice,"  etc.  How  must  it 
be  made  to  appear  that  from  prejudice  or  local  influence  the  de- 
fendant will  not  be  able  to  obtain  justice  in  the  State  Court?  The 
Act  of  1867  only  required  an  affidavit  of  the  party  that  he  had 
reason  to  believe  that  from  prejudice  or  local  influence  he  would 
not  be  able  to  obtain  justice  in  the  State  Court.  Kev.  Stat.  §  639, 
Subdiv.  Third.  By  the  Act  of  1887  it  must  be  made  to  appear  to 
the  court.  On  this  point,  also,  various  opinions  have  been  expressed 
in  the  Circuit  courts.  Our  opinion  is,  that  the  Circuit  Court  must 
be  legally  (not  merely  morally)  satisfied  of  the  truth  of  the  allega- 
tion, that,  from  prejudice  or  local  influence,  the  defendant  will  not 
be  able  to  obtain  justice  in  the  State  Court.  Legal  satisfaction  re- 
quires some  proof  suitable  to  the  nature  of  the  ease ;  at  least,  an 
affidavit  of  a  credible  person;  and  a  statement  of  facts  in  such 
affidavit,  which  sufficiently  evince  the  truth  of  the  allegation.  The 
amount  and  manner  of  proof  required  in  each  case  must  be  left  to 
the  discretion  of  the  court  itself.  A  perfunctory  showing  by  a 
formal  affidavit  of  mere  belief  will  not  be  sufficient.  If  the  peti- 
tion for  removal  states  the  facts  upon  which  the  allegation  is 
founded,  and  that  petition  be  verified  by  affidavit  of  a  person  or 
persons  in  whom  the  court  has  confidence,  this  may  be  regarded 
as  prima  facie  proof  sufficient  to  satisfy  the  conscience  of  the  court. 
If  more  sliould  be  refjuircd  by  the  court,  more  should  be  offered. 

In  view  of  these  considerations,  we  are  disposed  to  think  that 
the  proof  of  prejudice  and  local  influence  in  this  case  was  not  such 
as  the  Circuit  Court  was  bound  to  regard  as  satisfactory.  The 
only  proof  offered  was  contained  in  the  affidavit  of  the  general 
manager  of  the  defendant  corporation,  to  the  effect  that,  from 
prejudice  and  hjcal  influence,  tlie  comjjuny  would  not  be  able  to 
obtain  justice  in  the  Court  of  Common  Pleas  for  Litchfield  County, 
or  any  other  State  Court  to  which,  etc.    We  do  not  say  that,  as  a 


District  Courts  283 

matter  of  law,  this  affidavit  was  not  sufficient,  but  only  that  the 
court  was  not  bound  to  regard  it  so,  and  might  well  have  regarded 
it  as  not  sufficient. 

The  petition  for  mandamus  is  denied.^ 


ST.  JOHN  V.  TAINTOR. 

District  Court,  S.  D.  New  York.     1915. 

220  Fed.  457. 

Augustus  N.  Hand,  District  Judge. — The  plaintiff,  a  citizen  and 
resident  of  "Wyoming,  sued  the  defendant,  a  citizen  and  resident  of 
New  York,  in  the  Montana  State  Court.  The  cause  was  removed 
to  United  States  District  Court  for  the  Southern  District  of  New 
York,  and  the  plaintiff  now  appears  specially  and  moves  to  remand. 
The  motion  must  be  granted. 

Section  29  of  the  Judicial  Code  is  perfectly  clear,  and  furnishes 
the  only  provision  of  law  applicable  to  this  case.  It  says  that  the 
party  entitled  to  remove  *  *  any  suit  mentioned  in  the  last  preceding 
section"  shall  file  a  petition  "for  the  removal  of  such  suit  into  the 
District  Court  to  be  held  in  the  district  where  such  suit  is  pend- 
ing." These  words  indubitably  specify  the  District  Court  where 
the  suit  is  pending  as  "the  proper  district"  referred  to  in  the  pre- 
ceding section  28  of  the  Judicial  Code. 

The  present  statutes  relating  to  removal  of  causes  have  been 
carried  forward  from  sections  2  and  3  of  the  Judiciary  Act  of 
1875,  and  from  the  later  Judiciary  Act  of  1888.  The  Act  of  1875 
was  construed  in  the  case  of  Knowlton  v.  Congress  &  Empire 
Spring  Co.,  13  Blatchf.  170,  Fed.  Cas.  No.  7,902,  and  the  Act  of 
1888  in  the  case  of  Hyde  v.  Victoria  Land  Co.  (C.  C.)  125  Fed. 
970.  See,  also,  the  language  of  the  Supreme  Court  in  Ex  parte 
State  Insurance  Co.,  18  Wall.  417,  21  L.  Ed.  904.  Judge  Rose,  in 
the  case  of  St.  John  v.  United  States  Fidelity  &  Guaranty  Co. 
(D.  C.)  213  Fed.  685,  has  decided  the  exact  question  under  the 

1  Only  a  portion  of  the  opinion  is  reprinted. 

In  the  following  cases  it  was  held  that  it  had  been  properly  made  to 
appear  to  the  court  that  the  defendant  would  not  be  able  to  obtain  justice 
in  the  state  courts:  Cooper  v.  Eichmond  &  D.  R.  Co.,  42  Fed.  697,  698-700 
(1890)  ;  Walcott  v.  Watson,  46  Fed.  529,  531-532  (1891)  ;  Franz  v.  Wahl,  81 
Fed.  9,  10  (1897).— Ed. 


284  Cases  on  Federal  Procedure 

present  statute  in  accordance  with  the  views  which  I  have  ex- 
pressed. 

The  dictum  of  Judge  Ray  in  Mattison  v.  Boston  &  Main  R.  R. 
Co.  (D.  C.)  205  Fed.  821,  and  the  decision  of  Judge  Toulmin  in 
Stewart  v.  Cybur  Lumber  Co.  (D.  C.)  211  Fed.  343,  seem  to  me 
irreconcilable  with  the  language  of  the  statute,  the  former  deci- 
sions under  the  acts  of  which  the  present  law  is  a  practical  codifi- 
cation, and  also  with  what  I  conceive  to  be  the  object  of  the  law, 
namely,  to  enable  a  party  sued  by  a  citizen  of  another  State  to  be 
relieved  from  local  prejudices,  which  have  been  thought  more 
likely  to  exist  when  the  suit  was  brought  against  a  party  in  the 
courts  of  the  former's  own  State.  It  is  to  be  noted  that  neither 
of  these  cases  even  mentions  the  express  provisions  of  the  statute 
that  the  removal  is  to  be  into  the  court  "to  be  held  in  the  district 
where  such  suit  is  pending." 

It  is  not  to  be  supposed  that  a  citizen  of  Wyoming  would  en- 
counter local  prejudice  in  suing  a  citizen  of  New  York  in  the  courts 
of  the  State  of  Montana.^ 


MARTIN  V.  BALTIMORE  &  OHIO  RAILROAD. 
Supreme  Court  of  the  United  States.     1894. 
151  V.  S.  673,  14  8.  Ct.  533,  38  L.  Ed.  311. 

This  was  an  action  of  trespass  on  the  case,  brought  March  1, 
1888,  in  the  Circuit  Court  of  Berkeley  County  in  the  State  of  West 
Virginia,  by  John  W.  Martin  against  the  Baltimore  and  Ohio  Rail- 
road Company,  to  recover  damages  in  the  sum  of  .$10,000  for  per- 
sonal injuries  caused  to  the  plaintiff  by  the  defendant's  negligence 
at  Bayview  in  the  State  of  Maryland  on  I\Iay  22,  1887. 

On  April  12,  1888,  the  defendant  fiU'd  in  that  court  a  petition, 
uitii  proper  affidavit  and  bond,  for  the  removal  of  the  case  into 
the  (Circuit  Court  of  the  United  States  for  tlie  District  of  West 
V^irginia,  upon  the  ground  tiiat  at  the  commencement  of  the  suit 
and  ever  since  the  plaintiff  was  a  citizen  of  West  Virginia  and  the 

1  rompnro  very  carnfiillv,  Piirk  Sqiiuro  Aiitnmo})ilc  Station  v.  American 
I,opomotivo  Co.,  222  Fed.  "979,  9S2-994  (1915);  Fairview  Fiiiospar  &  Lead 
Co.  V.  Hcthlch<Tn  Steel  (Jo.,  2:18  Fed.  681,  <)8:{<)88  (1919);  Sanders  v.  Western 
I'nion   Teleprnph   Co.,   2(il    Fed.   697    (1919). 

Sec   al.so   Hyde   v.   Victoria   Land  Co.,   125  l\d.   970    (190:5).— Ed. 


District  Courts  285 

defendant  a  corporation  and  citizen  of  Maryland.  On  April  24, 
1888,  the  plaintiff  was  permitted  by  the  State  Court,  against  the 
defendant's  objection,  to  file  an  answer  to  the  petition  for  removal, 
den3ang  that  the  defendant  was  a  non-resident  corporation,  and 
alleging  that  it  was,  for  all  the  purposes  of  this  suit,  a  resident  of 
We.st  Virginia,  and  therefore  not  entitled  to  remove  the  case;  and 
the  court,  upon  a  hearing  on  that  petition  and  answer,  "taking 
judicial  notice  of  the  statutes  incorporating  the  defendant  in  Vir- 
ginia and  in  this  State,  and  being  of  opinion  that  said  Baltimore  & 
Ohio  Railroad  Company  is  not  a  non-resident  corporation,"  refused 
to  allow  the  removal. 

But  the  Circuit  Court  of  the  United  States,  on  June  11,  1888, 
upon  the  production  by  the  defendant  of  a  duly  certified  copy  of 
the  record  of  the  above  proceedings,  ordered  the  case  to  be  docketed 
in  that  court ;  and  on  July  23,  1888,  ordered  it  to  be  removed  into 
that  court. 

On  December  13,  1888,  the  plaintiff  filed  in  that  court  a  plea 
(called  in  the  record  a  plea  in  abatement),  that  it  ought  not  to 
take  further  cognizance  of  the  action,  because  before  and  at  the 
time  of  the  removal  the  defendant  "was  and  is  now  a  resident  of 
the  District  of  West  Virginia,  and  is  therefore  not  entitled  to 
remove  said  action"  to  that  court.  A  demurrer  to  that  plea  was 
filed  by  the  defendant,  and  sustained  by  the  court.  "And  there- 
upon," as  the  record  stated,  "the  plaintiff  moved  to  remand  this 
action  to  the  Circuit  Court  of  Berkeley  County,  which  motion  the 
court  overruled." 

The  defendant  then  pleaded  not  guilty.  Upon  the  issue  joined 
on  this  plea,  the  case  was  tried  by  a  jury,  the  plaintiff  and  other 
witnesses  testified  under  instructions  of  the  court,  and  judgment 
was  rendered  upon  the  verdict. 

The  plaintiff  duly  excepted  to  those  instructions,  and  sued  out 
this  writ  of  error,  which  was  entered  in  this  court  on  January  13, 
1890,  together  with  an  assignment  of  errors,  in  which  the  only 
error  assigned  to  the  sustaining  of  the  demurrer  to  the  plaintiff's 
plea,  or  to  the  denial  of  his  motion  to  remand,  was  as  follows: 
"The  Circuit  Court  erred  in  sustaining  the  demurrer  of  the  said 
defendant  in  error  to  the  plaintiff's  plea  in  abatement,  and  in  over- 
ruling the  motion  of  the  plaintiff  in  error  to  remand  the  said 
cause  to  the  State  Court  whence  it  had  been  removed  to  said  Circuit 
Court  of  the  United  States,  thus  deciding,  both  in  sustaining  said 
demurrer  and  in  overruling  said  motion,  that  the  Baltimore  and 


286  Cases  on  Federal  Procedure 

Ohio  Railroad  Company  was  a  non-resident  of  West  Virginia  and 
entitled  to  remove. 

The  other  errors  assigned  were  in  rulings  and  instructions  at 
later  stages  of  the  case,  which  it  will  not  be  necessary  to  consider. 

At  the  present  term  of  this  court,  the  plaintiff's  death  was  sug- 
gested, and  Gerling,  his  administrator,  appointed  by  the  County 
Court  of  Berkeley  County  in  West  Virginia,  came  in  to  prosecute 
in  his  stead ;  and  the  defendant  moved  to  dismiss  the  writ  of  error, 
because  an  action  for  personal  injuries  abated  by  the  death  of  the 
plaintiff. 

It  was  argued,  in  behalf  of  the  administrator,  that  the  removal 
from  the  State  Court  gave  the  Circuit  Court  of  the  United  States 
no  jurisdiction  of  this  case,  for  two  reasons :  1st.  That  the  Balti- 
more and  Ohio  Railroad  Company  was  a  resident  corporation  of 
the  State  of  West  Virginia ;  2nd.  That  the  application  to  the  State 
Court  for  removal  was  not  made  in  time.^     *     *     # 

The  other  objection  taken  in  argument  to  the  validity  of  the 
removal  of  the  case  into  the  Circuit  Court  of  the  United  States  is 
that  the  petition  for  removal  was  not  seasonably  filed  in  the  State 
Court  under  the  provision  of  the  Act  of  Congress  of  1887,  by  which 
any  party,  entitled  to  remove  such  a  suit  from  a  State  Court  into 
the  Circuit  Court  of  the  United  States,  "may  make  and  file  a  peti- 
tion in  such  suit  in  such  State  Court  at  the  time,  or  any  time  be- 
fore, the  defendant  is  required  by  the  laws  of  the  State,  or  the  rule 
of  the  State  Court  in  which  such  suit  is  brought,  to  answer  or  plead 
to  the  declaration  or  complaint  of  the  plaintiff."    24  Stat.  554. 

The  original  summons  in  this  case  was  issued  by  the  State  Court 
on  March  3,  1888,  returnable  at  the  rules  to  be  held  on  the  first 
Monday  of  March,  1888,  which  was  March  5,  and  was  served,  as 
appeared  by  the  officer's  return,  at  11  A.  M.  of  March  5,  the  stat- 
utes of  the  State  providing  that  "any  process  may  be  executed 
on  or  before  the  return  day  thereof."  W.  Va.  Code  of  1884,  e. 
124,  §  2. 

On  the  record  of  that  court  wore  the  following  minutes:  "March 
rules,  1888:  Declaration  filed  and  eoiniiion  order.  April  rules, 
1888:     Common  order  confirmed  and  W.  E." 

The  meaning  f)f  these  minutes  is  that  the  ]>laintiff,  having  filed 
Iiis  declaration  at  the  rule  day  on  which  the  summons  was  return- 
a))le,  and  tlie  defendant  having  failed  to  appear  on  that  day,  there 
was  thereupon  entered   in  the  eleik's  office,  as  authorized  by  the 

1  ()n]y  that  part  of  the  ojiiniori  dealing  with  tho  accond  point  is  reprinted. 
—Ed. 


District  Courts  287 

statutes  of  the  State,  a  conditional  judgment  or  judgment  7iisi, 
known  as  the  "common  order,"  that  judgment  be  entered  for  the 
plaintiff  unless  the  defendant  should  appear  and  plead  at  the  next 
rules ;  and  at  April  rules,  the  defendant  continuing  in  default,  the 
clerk  entered,  pursuant  to  those  statutes,  an  office  judgment,  con- 
firming the  former  one,  with  an  order  or  writ  of  enquiry  of  dam- 
ages.   W.  Va.  Code,  e.  125  §§  1,  6;  4  Minor's  Institutes-,  599,  601. 

By  the  statutes  and  practice  of  the  State,  this  office  judgment 
would,  if  not  set  aside,  become  a  final  judgment  on,  and  not  be- 
fore, the  last  day  of  the  next  succeeding  term.  But  the  defendant 
might,  at  any  time  before  the  end  of  that  term,  *' appear  and  plead 
to  issue,"  that  is  to  say,  answer  to  the  merits  of  the  action,  either 
by  plea  in  bar,  or  by  demurrer ;  and,  if  he  did  so  appear  and  plead 
within  that  time,  the  office  judgment,  not  having  been  entered  up 
in  court,  nor  the  writ  or  order  of  enquiry  executed,  would  be  set 
as  of  course,  and  the  case  stand  for  trial  upon  the  merits.  In 
short,  either  judgment  in  the  clerk's  office  was  merely  a  formal 
judgment  of  default,  not  affecting  the  defendant's  absolute  right 
to  interpose  any  defense  upon  the  merits.  But  at  a  subsequent 
term,  or  if  the  office  judgment  had  been  confirmed  by  the  court, 
or  the  writ  of  enquiry  executed,  he  could  not,  without  leave  of 
court,  file  any  plea  whatever.  A  plea  to  the  jurisdiction,  or  in 
abatement,  if  it  could  have  been  filed  after  the  common  order  or 
conditional  judgment  in  the  clerk's  office,  certainly  could  not  have 
been  filed,  without  special  leave  of  the  court,  after  the  office  judg- 
ment confirming  that  order;  and  therefore  in  this  case,  upon  the 
most  liberal  construction  possible,  not  after  the  April  rules.  W. 
Va.  Code,  c.  125,  §§  16,  46,  47 ;  4  Minor's  Institutes,  601,  605;  Res- 
ler  V.  Shehee,  1  Cranch  110 ;  Furniss  v.  Ellis,  2  Brock.  14 ;  Hinton 
v.  Ballard,  3  W.  Va.  682 ;  Delaplain  v.  Armstrong,  21  W.  Va.  211. 

The  defendant's  petition  for  the  removal  of  the  case  into  the 
Circuit  Court  of  the  United  States  was  not  filed  at  the  rules,  either 
in  March  or  in  April.  But  it  was  afterwards  filed  in  and  heard  by 
the  State  Court  before  the  end  of  the  April  term.  It  was  therefore 
filed  at  or  before  the  time  at  which  the  defendant  was  required  by 
the  laws  of  the  State  to  answer  or  plead  to  the  merits  of  the  case, 
but  after  the  time  at  which  he  was  required  to  plead  to  the  juris- 
diction of  the  court,  or  in  abatement  of  the  writ. 

Was  this  a  compliance  with  the  provision  of  the  Act  of  Congress 
of  1887  which  defines  the  time  of  filing  a  petition  for  removal  in 
the  State  Court?  We  are  of  opinion  that  it  was  not,  for  more 
than  one  reason.    This  provision  allows  the  petition  for  removal  to 


288  Cases  on  Federal  Procedure 

be  filed  at  or  before  the  time  when  the  defendant  is  required  by 
the  local  law  or  rule  of  court  "to  answer  or  plead  to  the  declaration 
or  complaint."  These  words  make  no  distinction  between  differ- 
ent kinds  of  answers  or  pleas ;  and  all  pleas  or  answers  of  the  de- 
fendant, whether  in  matter  of  law  by  demurrer,  or  in  matter  of 
fact,  either  by  dilatory  plea  to  the  jurisdiction  of  the  court  or  in 
suspension  or  abatement  of  the  particular  suit,  or  by  plea  in  bar 
of  the  whole  right  of  action,  are  said,  in  the  standard  books  on 
pleading,  to  "oppose  or  answer"  the  declaration  or  complaint 
which  the  defendant  is  summoned  to  meet.  Stephen  on  Pleading, 
(1st  Am.  ed.),  60,  62,  63,  70,  71,  239 ;  Lawes  on  Pleading,  36.  The 
Judiciar}'  Act  of  September  24,  1789,  c.  20,  §  12,  required  a  peti- 
tion for  removal  of  a  case  from  a  State  Court  into  the  Circuit 
Court  of  the  United  States  to  be  filed  by  the  defendant  "at  the 
time  of  entering  his  appearance  in  such  State  Court."  1  Strat.  79. 
The  recent  acts  of  Congress  have  tended  more  and  more  to  contract 
the  jurisdiction  of  the  courts  of  the  United  States,  which  had  been 
enlarged  by  intermediate  acts,  and  to  restrict  it  more  nearly  within 
the  limits  of  the  earliest  statute.  Pullman  Car  Co.  v.  Speck,  113 
U.  S.  84 ;  Smith  v.  Lyon,  133  U.  S.  315,  320 ;  In  re  Pennsylvania 
Co.,  137  U.  S.  451,  454 ;  Fisk  v.  Henarie,  142  U.  S.  459,  467 ;  Shaw 
v.  Quincy  Mining  Co.,  145  U.  S.  444,  449. 

Construing  the  provision  now  in  question,  having  regard  to  the 
natural  meaning  of  its  language,  and  to  the  history  of  the  legisla- 
tion upon  this  subject,  the  only  reasonable  inference  is  that  Con- 
gress contemplated  that  the  petition  for  removal  should  be  filed  in 
the  State  Court  as  soon  as  the  defendant  was  required  to  make  any 
defense  whatever  in  that  court ;  so  that,  if  the  case  should  be  re- 
moved, the  validity  of  any  and  all  of  his  defenses  should  be  tried 
and  determined  in  the  Circuit  Court  of  the  United  States. 

As  the  petition  for  the  removal  of  this  case  into  the  Circuit  Court 
of  the  United  States  was  not  filed  in  the  State  Court  within  the 
time  mentioned  in  the  Act  of  Congress,  it  would  follow  that,  if  a 
motion  to  remand  upon  that  ground  had  been  made  promptly  and 
denied,  the  judgment  of  the  Circuit  Court  of  the  United  States 
must  have  been  reversed,  with  directions  to  remand  the  case  to  the 
State  Court.  Edrington  v.  Jefferson,  111  U.  S.  770;  Baltimore  & 
Ohio  Railroad  v.  Burns,  124  U.  S.  165.2 

2  Sfp  al.Mo  Lewis  v.  Clyde  S.  S.  Co.,  Ul  N.  C.  652,  653,  654,  42  S.  E.  069, 
969    (1902). 

iJut  compare  Mahoney  v.  New  South  Building  &  Loan  Asa'n,  70  Fed.  513 
(1895);    Duncan    v.    Associated    Press,   81    Fed.    417,   422    (1897);    Wilson    v. 


District  Courts  289 

RUBY  CANYON  GOLD  MIN.  CO.  v.  HUNTER. 

Circuit  Court,  W.  D.  South  Dakota.     1894. 
60  Fed.  305. 

Sanborn,  Circuit  Judge. — Motions  to  remand  these  eases  are 
made  because,  while  the  petitions  and  bonds  for  removal  were 
filed  in  a  State  Court  within  the  time  fixed  by  stipulations  of  the 
parties  and  orders  of  the  court  extending  the  time  beyond  that 
fixed  by  statute  for  the  defendants  to  answer  (as  the  parties  and 
the  court  might  lawfully  do  under  the  statutes  of  South  Dakota), 
they  were  not  filed  within  the  30  days  within  which  the  defendants 
were  required  by  those  statutes  to  answer  or  plead  to  the  com- 
plaints in  the  absence  of  such  stipulations  or  orders.  Cop.  St.  S. 
D.  §§4908,  4939. 

The  provision  of  section  3  of  the  Act  of  March  3,  1887,  as  cor- 
rected by  the  Act  of  August  13,  1888  (25  Stat.  433  Supp.  Rev.  St. 
p.  613,  §  3),  which  requires  the  petition  for  removal  to  be  filed  in 
the  State  Court  "at  the  time,  or  any  time  before  the  defendant  is 
required  by  the  laws  of  the  State  or  the  rule  of  the  State  Court  in 
which  such  suit  is  brought  to  answer  or  plead  to  the  declaration 
or  complaint  of  the  plaintiff,"  is  imperative,  and  requires  the  peti- 
tion to  be  filed  within  the  time  fixed  by  the  statute  (where  the 
statute  fixes  it),  or  within  the  time  fixed  by  the  rule  of  court  (where 
the  rule  of  court  fixes  it),  and  not  within  any  time  that  a  defend- 
ant may  obtain  by  stipulation  with  the  plaintiff,  or  by  order  of 
court.  This  construction  secures  uniformity  in  the  practice,  pre- 
vents delays,  and  I  think  is  in  accord  with  the  evident  intention 
of  Congress.  It  was  not  within  any  time  that  a  defendant  might 
procure  to  be  given  him  by  the  court  of  his  opponent,  but  within 
the  time  fixed  by  the  statute,  that  Congress  intended  the  petition 
should  be  filed.  Spangler  v.  Railroad  Co.,  42  Fed.  305;  VeHe  v. 
Indemnity  Co.,  40  Fed.  545 ;  Austin  v.  Gagan,  39  Fed.  626 ;  Dixon 
V.  Telegraph  Co.,  38  Fed.  377 ;  Hurd  v.  Gere,  Id.  537 ;  Delbanco  v. 
Singletary,  40  Fed.  177;  Rock  Island  Nat.  Bank  v.  J.  S.  Keator 

Winchester  &  P.  R.  Co.,  82  Fed.  15,  15-17  (1897);  Groton  Bridge  &  Mfg.  Co. 
V.  American  Bridge  Co.,  137  Fed.   284,  293-296   (1905). 

As  to  the  effect  of  treating  a  petition  as  filed,  though  it  has  not  been,  see 
Bryan  v.  Barriger,  251  Fed.  328,  329-330. 

To  the  effect  that  the  time  for  answering  expires  when  the  answer  is  filed, 
see  Howard  v.  Southern  By.  Co.,  122  N.  C.  944,  947,  29  S.  E.  778,  779  (1898). 

See  in  this  relation,  as  to  effect  of  preliminary  ptoceedings.  Sidway  v. 
Missouri  Land  &  Live  Stock  Co.,  116  Fed.  381,  391-395   (1902).— Ed. 

\^nieatonC.  F.  P.— 19 


290  Cases  on  Federal  Procedure 

Lumber  Co.,  52  Fed.  897;  Railroad  Co.  v.  Daughtry,  138  U.  S.  298, 
303,  11  Sup.  Ct.  306.  The  petitions  for  removal  in  this  case  were 
not  filed  before  the  defendants  were  required  by  the  laws  of  South 
Dakota  to  answer  or  plead  to  the  complaint.  They  were  too  late. 
The  motions  to  remand  must  be  granted.^ 


CHIATOYICH  V.  HAXCHETT. 

Circuit  Court,  D.  Nevada.     1897. 

78  Fed.  193. 

Hawley,  District  Judge  (orally). ^ — This  is  an  action  of  libel, 
and  was  brought  in  the  District  of  Esmeralda  County,  Nev.  The 
complaint  was  filed  August  29,  1896.  Summons  was  served  on 
L.  E.  Hanchett  August  31,  1896.  On  September  5,  1896,  the  dis- 
trict judge,  for  good  cause  shown,  extended  the  time  "to  plead 
in  the  above-entitled  action"  to  September  30,  1896.  On  Septem- 
ber 26,  1896,  Messrs.  Torreyson  &  Summerfield  entered  their  ap- 
pearance in  said  action  on  behalf  of  the  defendant  L.  J.  Hanchett, 
and  accepted  "the  time  specified  in  the  stipulation  herein  on  file 
in  which  to  plead  to  the  complaint  in  said  action."  The  terms  of 
the  stipulation  referred  to  were  "that  the  above-named  defendants 
L.  J.  Hanchett  and  L.  E.  Hanchett  shall  have  to  and  including 
the  15th  day  of  October,  1896,  in  which  to  plead  to  plaintiff's  com- 
plaint in  the  above-entitled  action."  On  October  14,  1896,  the  de- 
fendants, by  their  attorneys,  appeared  in  the  District  Court  solely 
for  the  purpose  of  apph'ing  to  the  court  for  an  order  removing  the 
cause  to  the  Circuit  Court  of  the  United  States.     The  petition  for 

1  See  further,  in  accord,  Martin  v.  Carter,  48  Fed.  596,  598  (1896)  ;  Pilgrim  v. 
Aetna  Life   Ins.   Co.,  2;i4  Fed.   9.^8    (1916). 

Conii)are  Dwyer  v.  Peshall,  32  Fed.  497  (1887);  Kurd  v.  Gere,  38  Fed.  537 
n889;;  Fox  v.  Southern  Ry.  Co.,  80  Fed.  94J  (1897);  Solomon  v.  Pennsyl- 
vania K.  Co.,  240  Fed.  231  "(1917). 

Where  the  service  of  .summons  m\  the  nonresident  defendant  is  void,  the 
time  limited  by  tlie  state  statute  for  the  defendant  to  apjiear  and  plead  does 
not  begin  to  run  from  tlie  date  of  sui-h  service,  as  far  as  the  time  within 
which  a  removal  must  be  re(|uested  is  concerned.  Tortat  v.  Hardin  Min.  & 
Mfg.  Co.,  Ill   Fed.  426,  429    (1901). 

As  to  the  effect  of  an  entire  lack  of  service,  see  Robert  v.  Pineland  Club, 
139  Fed.  1001,  1002-1003  (1905);  Williams  v.  Wilson  Fruit  Co.,  222  Fed. 
467  n915);  Dniibar  v.  Hosenbloom,  230  xMass.  176,  179,  119  N.  E.  829,  830 
(1918;.— Kd. 

8  Only  a  jMiftion  of  tin-  oj)iiiion  is  rejirintcd. — Ed, 


District  Courts  201 

removal  was  made  upon  the  ground  that  the  plaintiff  was  at  the 
time  of  the  commencement  of  the  action,  and  still  is,  a  citizen  and 
resident  of  the  State  of  Nevada,  and  that  the  defendants  were  at 
that  time,  and  still  are  citizens  and  residents  of  the  State  of  Cali- 
fornia. The  District  Court,  upon  the  facts  set  out  in  the  petition, 
the  giving  of  a  proper  bond,  etc..  made  an  order  removing  said 
cause  to  this  court. 

The  preliminary  objections  being  disposed  of,  we  now  reach  the 
merits  of  the  motion  to  remand.  Was  the  petition  for  removal 
filed  in  time?  The  statute  provides  that,  whenever  any  party  is 
entitled  to  remove  any  suit  ''from  a  State  Court  to  the  Circuit 
Court  of  the  United  States  he  may  make  and  file  in  such  suit  in 
such  State  Court  at  the  time  or  any  time  before  the  defendant  is 
required  by  the  laws  of  the  State  or  the  rule  of  the  State  Court 
in  which  suit  is  brought  to  answer  or  plead  to  the  declaration  or 
complaint  of  the  plaintiff."  It  is  the  settled  law  and  practice  of 
the  United  States  courts  that  an  extension  of  time  to  answer  by 
order  of  court,  whether  made  on  stipulation  or  not,  extends  the 
time  for  removal.  Rycroft  v.  Green,  49  Fed.  177 ;  Phenix  Ins.  Co. 
V.  Charleston  Bridge  Co.,  13  C.  C.  A.  58,  65  Fed.  628;  Price  v. 
Railroad  Co.,  65  Fed.  825 ;  Garrard  v.  Silver  Peak  Mines,  76  Fed. 
1  and  authorities  there  cited.  This  point  is  conceded  by  the  plain- 
tiff; but  his  contention  is  that  a  mere  stipulation  of  counsel,  with- 
out any  order  of  the  court,  is  insufficient  to  extend  the  time  for 
a  removal,  and  cites  authorities  in  support  of  this  proposition. 
Martin  v.  Carter,  48  Fed.  596 ;  Schipper  v.  Cordage  Co.,  72  Fed. 
803,  But  the  question  depends  solely  upon  what  "is  required  by 
the  laws  of  the  State  or  the  rule  of  the  State  Court  in  which  such 
suit  is  brought. ' '  This  court  must  be  governed  in  its  decision  upon 
this  point  by  the  laws  and  rules  of  the  Court  of  the  State  of 
Nevada.  By  the  laws  of  this  State  the  Supreme  Court  is  author- 
ized to  "make  rules  not  inconsistent  with  the  Constitution  and 
laws  of  the  State  for  its  own  government  and  the  government  of 
the  District  courts."  Gen.  St.  Nev.  §  3612.  In  pursuance  of  that 
authoritj^  of  the  District  courts,  among  others  that  no  agreement 
or  stipulation  of  counsel  should  be  regarded  "unless  the  same  shall 
be  entered  in  the  minutes  in  the  form  of  an  order  by  consent  or 
unless  the  same  shall  be  in  writing  subscribed  by  the  party  against 
whom  the  same  shall  be  alleged  or  by  his  attorney  or  counsel." 
Rule  27,  20  Nev.  28,  and  24  Pac.  xi.  In  Haley  v.  Bank,  20  Nev. 
410,  22  Pac.  1098,  the  court  held  that  such  rules  were  intended 
to  be  supplemental  to  the  provisions  of  the  statute  as  rules  for  the 


292  Cases  on  Federal  Procedure 

government  of  all  proceedings  in  the  District  Court,  and  that  they 
should  have  the  same  force  and  effect  as  if  they  were  incorporated 
in  the  statutory  provisions  of  the  State.  No  default  could  have 
been  entered  in  the  State  Court.  The  time  for  defendants  to 
plead  had  not  expired.  The  petition  for  removal  was  filed  in  time. 
People's  Bank  v.  Aetna  Ins.  Co.,  53  Fed.  161.3 


"Mr.  Chief  Justice  Fuller,  in  Kansas  City  Railroad  v.  Daugh- 
try,  138  U.  S.  298,  11  S.  Ct.  306,  34  L.  Ed.  963  (1891)  said, 

"The  statute  is  imperative  that  the  application  to  remove  must 
be  made  when  the  plea  is  due,  and  because  a  plaintiff  in  error 
does  not  take  advantage  of  his  right  to  take  judgment  by  default, 
it  cannot  be  properly  held  that  he  thereby  extends  the  time  for 
removal. ' ' 


POWERS  V.  CHESAPEAKE  AND  OHIO  RAILWAY 
COMPANY. 

Supreme  Court  of  the  United  States.     1898. 

169  TJ.  S.  92,  18  8.  Ct.  264,  12  L.  Ed.  673. 

Powers  sued  the  defendant  railway  company,  as  well  as  Boyer, 
Evans  and  Hickey,  the  conductor,  engineer  and  fireman  of  a  rail- 
way train  of  the  company,  for  injuries  done  to  Powers  by  them. 
The  railway  company,  before  its  answer  was  required  to  be  filed, 
obtained  a  removal  of  the  case  into  the  Federal  District  Court. 
It  was  remanded  to  tlie  State  Court,  there  being  no  separable 
controversy  between  Powers  and  the  company,  who  were  citizens 
of  different  States,  since  the  other  defendants  were  citizens  of 
the  same  State  as  Powers.     After  the  time  within  which  the  de- 

8  Ah  to  tho  cfTpct  of  Htipiilatinnn  mid  fourt  orders  to  pxtond  tho  time 
within  which  a  removal  may  'k'  had,  see,  in  aeeord,  Wilcox  k  (lihbs  Guano 
Co.  V.  Phoenix  Ins.  Co.,  m  Fed.  ;»29,  D.iO  !);t2  (ISD-J);  Citizens'  Trust  & 
SavinKH   Hank   v.    HoI.I.h,   2r,:',    Fed.   -17!)    (1918). 

Compare  Tracy  v.  Morel,  88  Fed.  801,  802  (1898).— Ed. 


District  Courts  293 

fendants  were  required  to  answer,  Powers  dropped  all  the  parties 
as  defendants  except  the  railway  company.  The  railway  com- 
pany immediately  thereafter  asked  for  a  removal  from  the  State 
to  the  Federal  Court.^ 

Mr.  Justice  Gray,  after  stating  the  ease,  delivered  the  opinion 
of  the  court.  *  *  *  The  existence  of  diverse  citizenship,  or 
other  equivalent  condition  of  jurisdiction,  is  fundamental ;  the 
want  of  it  will  be  taken  notice  of  by  the  court  of  its  own  motion, 
and  cannot  be  waived  by  either  party.  Manchester,  etc.,  Railway 
V.  Swan,  111  U.  S.  379.  But  the  time  of  filing  a  petition  for  re- 
moval is  not  essential  to  the  jurisdiction;  the  provision  on  that 
subject  is,  in  the  words  of  Mr.  Justice  Bradley,  ''but  modal  and 
formal,"  and  a  failure  to  comply  with  it  may  be  the  subject  of 
waiver  or  estoppel.  Ayers  v.  Watson,  113  U.  S.  594,  597-599 ; 
Northern  Pacific  Railroad  v.  Austin,  135  U.  S.  315,  318;  Martin 
V.  Baltimore  &  Ohio  Railroad,  151  U.  S.  673,  688-691 ;  Connell  v. 
Smiley,  156  U.  S.  335. 

Undoubtedly,  when  the  case,  as  stated  in  the  plaintiff's  declara- 
tion, is  a  removable  one,  the  defendant  should  file  his  petition  for 
removal  at  or  before  the  time  when  he  is  required  by  the  law  or 
practice  of  the  State  to  make  any  defense  whatever  in  its  courts. 
Edrington  v.  Jefferson,  111  U.  S.  770;  Baltimore  &  Ohio  Railroad 
V.  Burns,  124  U.  S.  165 ;  Kansas  City,  etc.,  Railroad  v.  Daughtry, 
138  U.  S.  298 ;  Martin  v.  Baltimore  &  Ohio  Railroad,  151  U.  S.  673, 
686,  687. 

But  it  by  no  means  follows,  when  the  case  does  not  become  in 
its  nature  a  removable  one  until  after  the  time  mentioned  in  the 
act  has  expired,  that  it  cannot  be  removed  at  all. 

In  Northern  Pacific  Railroad  v.  Austin,  135  U.  S.  315,  where  a 
plaintiff  suing  in  an  inferior  court  of  a  State  had  laid  his  dam- 
ages at  less  than  the  sum  necessary  to  authorize  a  removal  into 
the  Circuit  Court  of  the  United  States  and  was  permitted  at  the 
trial  to  increase  the  ad  damnum  above  that  sum,  and  judgment  of 
the  District  Court  was  affirmed  by  the  highest  court  of  the  State, 
a  writ  of  error  to  that  court  was  dismissed  by  this  court  solely 
because  no  application  for  removal  had  been  made  after  the  allow- 

1  The  facts  are  restated. — Ed. 


294  Cases  on  Federal  Procedure 

ance  of  the  amendment;  and  the  Chief  Justice,  in  delivering  the 
opinion,  said:  ''If  the  application  had  been  made,  the  question 
would  then  have  arisen  whether  it  came  too  late  under  the  cir- 
cumstances. The  defendant  was  not  entitled  to  remove  the  suit, 
as  originally  brought,  'before  or  at  the  term  at  which  such  cause 
could  be  first  tried,  and  before  the  trial  thereof.'  But  the  objec- 
tion to  removal  depending  upon  the  absence  of  the  jurisdictional 
amount,  was  obviated  by  the  amendment.  As  the  time  within 
which  a  removal  must  be  applied  for  is  not  jurisdictional,  but 
modal  and  formal,  Ayers  v.  Watson,  113  U.  S.  594,  598,  it  may, 
though  obligatory  to  a  certain  extent,  be  waived;  and  as  where  a 
removal  is  effected,  the  partj^  who  obtains  it  is  estopped  upon  the 
question  of  the  time,  so,  if  the  conduct  of  the  plaintiff  in  a  given 
case  were  merely  a  device  to  prevent  a  removal,  it  might  be  that 
the  objection  as  to  the  time  could  not  be  raised  by  him."  135 
U.  S.  318. 

The  question  whether  a  defendant  may  file,  in  the  State  Court 
in  which  the  suit  was  commenced,  a  petition  for  removal,  after  the 
time  mentioned  in  the  Act  of  Congress  has  elapsed,  in  a  case  which 
was  not  removable  when  that  time  expired,  is  now  directly  pre- 
sented for  adjudication ;  and  the  answer  to  this  question  depends 
upon  the  terms  and  effect  of  the  act  in  force  when  these  proceed- 
ings took  place. 

In  order  to  warrant  a  removal  from  a  court  of  a  State  into  a 
Circuit  Court  of  the  United  States,  according  to  the  terms  of  that 
act,  the  necessary  diverse  citizenship  or  other  foundation  of  the 
jurisdiction  of  the  Circuit  Court  of  the  United  States,  must  exist. 
It  is  only  when  that  does  exist,  that  "any  party  entitled  to  re- 
move any  suit"  "may  make  and  file  a  petition  in  such  suit  in  such 
State  Court  at  the  time,  or  at  any  time  before  the  defendant  is 
required  by  the  laws  of  the  State,  or  the  rule  of  the  State  Court 
in  which  such  suit  is  brought,  to  answer  or  plead  to  the  declaration 
or  complaint  of  the  plaintiff,  for  the  removal  of  such  suit  into 
the  Circuit  Court  to  be  held  in  the  district  where  such  suit  is  pend- 
ing,"  and  to  give  bond  to  file  a  copy  of  the  record  in  that  court, 
"on  the  first  day  of  its  then  next  session."  Act  of  March  3,  1887, 
c.  373,  as  corrected  by  Act  of  August  13,  1888,  c.  866 ;  25  Stat.  435. 

This  provision  clearly  mjinifcsts  the  intention  of  Congress  that 
tho  petifioii  for  removal  should  bo  filed  at  the  earliest  possible  op- 
porf unify.  I'lit,  so  long  as  there  does  not  apjicar  of  record  to  be 
any  rciiiovahie  controversy,  no  i)arty  can  be  entitled  to  remove  it, 
and  flic  jirovision  of  the  Act  of  Congress,  that  "anj^  party  entitled 
to  remove  any  suit,"  "may  make  and  file  a  petition  for  removal" 


District  Courts  295 

at  or  before  the  time  when  he  is  required  to  make  answer  to  the 
suit,  cannot  be  literally  applied.  To  construe  that  provision  as 
restricting,  to  the  time  prescribed  for  answering  the  declaration, 
the  removal  of  a  case  which  is  not  a  removable  one  at  that  time, 
would  not  only  be  inconsistent  with  the  words  of  the  statute ;  but 
it  would  utterly  defeat  all  right  of  removal  in  many  cases ;  as,  for 
instance,  whenever  citizens  of  the  same  State  as  the  plaintiff  were 
joined  as  defendants  through  an  honest  mistake,  not  discovered 
by  the  plaintiff  until  after  the  time  prescribed  for  answering;  or 
whenever  a  personal  injury  was  supposed,  at  the  time  of  bringing 
an  action  therefore,  to  be  a  comparatively  trifling  one,  which 
might  be  fully  compensated  by  a  sum  much  less  than  $2,000,  and 
was  afterwards  discovered  to  be  so  much  graver,  that  there  could 
be  no  doubt  of  the  power  and  the  duty  of  the  court  to  allow  an 
amendment  increasing  the  ad  damnum. 

The  reasonable  construction  of  the  Act  of  Congress,  and  the 
only  one  which  will  prevent  the  right  of  removal,  to  which  the 
statute  declares  the  party  to  be  entitled,  from  being  defeated  by 
circumstances  wholly  beyond  his  control,  is  to  hold  that  the  inci- 
dental provision  as  to  the  time  must,  when  necessary  to  carry  out 
the  purpose  of  the  statute,  yield  to  the  principal  enactment  as  to 
the  right;  and  to  consider  the  statute  as,  in  intention  and  effect, 
permitting  and  requiring  the  defendant  to  file  a  petition  for  re- 
moval as  soon  as  the  action  assumes  the  shape  of  a  removable  case 
in  the  court  in  which  it  was  brought. 

The  result  is  that,  when  this  plaintiff  discontinued  his  action 
as  against  the  individual  defendants,  the  case  for  the  first  time 
became  such  a  one  as,  by  the  express  terms  of  the  statute,  the 
defendant  railway  company  was  entitled  to  remove ;  and  therefore 
its  petition  for  removal  filed  immediately  upon  such  discontinu- 
ance, was  filed  in  due  time.'* 


JONES  V.  ADAMS  EXPRESS  CO. 

Circuit  Court,  E.  D.  Kentucky.     1904. 

129  Fed.  618. 

Cochran,  District  Judge. — It  is  well  settled  that  a  party  bring- 
ing a  suit  in  a  Federal  Court  or  seeking  to  remove  one  brought 

2  Only   a   portion   of  the   opinion   is   reprinted. 

For  another  case  of  this  kind,  see  Speckart  v.  German  Nat.  Bank,  85  Fed. 
12,  12-15   (1898).— Ed. 


296  Cases  on  Federal  Procedure 

in  a  State  Court  thereto  must  show  affirmatively  in  his  petition  or 
bill  in  the  one  case  and  in  his  petition  for  removal  in  the  other 
ease  that  the  Federal  Court  has  jurisdiction  thereof  by  alleging 
the  facts  essential  to  give  it  jurisdiction.  If  he  does  not  show  this, 
his  petition  or  bill  in  the  one  case  will  be  dismissed,  or  the  cause 
in  the  other  case  will  be  remanded  to  the  State  Court,  and  that  by 
the  court  upon  its  ow'n  motion  upon  becoming  aware  of  the  failure 
to  show  jurisdiction.  It  is  also  well  settled  that  if  the  ground  of 
Federal  jurisdiction  relied  on  is  that  of  diversity  of  citizenship, 
the  party  suing  or  removing  must  allege  not  simply  that  the  parties 
are  citizens  of  different  States,  but  the  States  of  which  they  are 
citizens.  In  the  case  of  Cameron  v,  Hodges,  127  U.  S.  325,  8  Sup. 
Ct.  1155,  32  L.  Ed.  132,  Mr.  Justice  Miller  said : 

"This  court  has  always  been  particular  in  requiring  a  distinct 
statement  of  the  citizenship  of  the  parties  and  of  the  particular 
State  in  which  it  is  claimed,  in  order  to  sustain  the  jurisdiction." 

In  the  ease  of  Benjamin  v.  City  of  New  Orleans,  74  Fed.  417,  20 
C.  C.  A.  591,  it  was  held  that  a  bill  filed  in  the  United  States  Cir- 
cuit Court  of  Louisiana  by  the  assignee  of  certain  claims  against 
the  City  of  New  Orleans,  which  alleged  that  each  of  the  assignors 
of  said  claims  were  "citizens,  respectively,  of  States  other  than 
the  State  of  Louisiana,"  was  properly  dismissed  because  it  did 
not  set  forth  the  States  of  which  said  assignors  were  citizens. 
Judge  Speer  said: 

"The  defendant  is  entitled  to  actual  and  definite  notice  in  the 
plaintiff's  pleading  of  the  citizenship  or  alleged  citizenship  of 
each  assignor.  No  fact  in  the  pleading  of  the  plaintiff  in  these 
courts  can  be  more  material,  for  the  authority  of  the  court  to  act 
depends  upon  it.  It  was  not  sufficient,  then,  to  say  that  the  as- 
signors were  'citizens,  respectively,  of  States  other  than  Louisiana, 
and  competent,  as  such  citizens,  to  maintain  suit  in  this  court.' 
Jurisdiction  cannot  be  inferentially  averred." 

Tlie  general  allegation  of  diversity  of  citizenship  is  not  suffi- 
cient to  give  the  Federal  Court  jurisdiction,  in  the  absence  of  a 
motion  to  make  it  more  specific.  It  is  simply  sufficient  to  permit 
an  amendment  making  it  more  specific.  This  was  all  that  was 
decided  in  the  case  of  Stadlemann  v.  White  Line  T,  Co.  (C.  C.) 
92  Fed.  209.  If  an  amcjidinent  had  not  been  otTered  in  that  case, 
making  the  petition  for  removal  specific  by  alleging  the  particular 
State  of  which  the  plaintiff  in  the  action  was  a  citizen,  the  motion 


District  Courts  297 

to  remand  would  have  been  sustained.  So  far  there  can  be  no 
question  as  to  the  correctness  of  the  positions  taken. 

The  question  which  this  case  presents  is  whether  the  numerous- 
ness  of  the  parties  plaintiff  or  defendant  makes  any  difference.  It 
is  alleged  in  the  petition  for  removal  that  the  petitioner  and  de- 
fendants in  the  action  are  more  than  3,000  in  number.  The  plain- 
tiff had  a  right  to  sue  them  all.  Under  the  decision  in  the  case 
of  Adams  Express  Co.  v.  Schofield  (Ky.),  64  S.  W.  903,  23  Ky. 
Law  Rep.  1120,  he  had  a  right  to  sue  them  under  the  name  of 
Adams  Express  Company,  and  the  cause  was  not  removable  unless 
all  of  them  were  citizens  of  States  other  than  Kentucky.  The 
defendants  claim  that  to  compel  them  to  set  out  the  States  of 
which  each  of  them  are  citizens  will  be  a  hardship  on  them,  and 
a  practical  denial  of  the  right  to  come  into  the  Federal  Court. 
Is  the  fact  of  the  numerousness  of  the  petitioners  and  the  hard- 
ship that  it  will  be  upon  them  to  require  them  to  make  their  peti- 
tion for  removal  more  specific  sufficient  reason  for  this  court  tak- 
ing jurisdiction  of  this  cause,  nothing  else  appearing  than  what 
is  alleged  in  the  petition  for  removal?  Two  reasons  occur  to  me 
why,  in  a  case  of  this  kind,  it  is  not  sufficient  reason.  It  will 
simply  postpone  the  hardship  to  a  later  stage  of  the  proceeding.  It 
will  certainly  be  imposed  upon  them  by  a  denial  of  the  general 
allegation  as  to  the  citizenship  of  the  petitioners.  The  other  is 
that  it  takes  from  the  petitioners  the  burden  of  showing  that  this 
court  had  jurisdiction,  and  imposes  on  defendant  to  the  removal 
the  burden  of  showing  that  it  has  not  jurisdiction,  thereof.  Cer- 
tain advantages  accrue  to  defendants  by  so  many  of  them  being 
able  to  do  business  together  without  incorporation.  If  it  were 
not  so,  they  would  not  transact  business  in  this  way.  Certain  dis- 
advantages grow  out  of  it  also.  They  should  take  the  disadvan- 
tages with  the  advantages — the  bitter  with  the  sweet.  I  think  the 
fair  inference  from  the  decisions  in  the  cases  of  Chapman  v,  Bar- 
ney, 129  U.  S.  677,  9  Sup.  Ct.  426,  32  L.  Ed.  800,  Great  So,  F,  P. 
H.  Co.  V.  Jones,  177  U.  S.  449,  20  Sup.  Ct.  690,  44  L.  Ed.  482,  is 
that  the  numerousness  of  parties  plaintiff  or  defendant  is  not 
sufficient  to  take  a  case  out  of  the  well-settled  rules  heretofore 
stated. 

I  think,  therefore,  that  I  erred  in  overruling  the  motion  to  re- 
mand. The  order  overruling  it  will  therefore  be  set  aside.  The 
petitioners  may  file  an  amendment  setting  forth  the  States  of 


298  Cases  on  Federal  Procedure 

which  each  of  them  is  a  citizen,  it  they  so  desire;  otherwise  the 
motion  to  remand  will  be  sustained.^ 


LOOP  V.  WINTERS'  ESTATE. 

Circuit  Court,  D.  Nevada.    1902. 

115  Fed.  362. 

Hawley,  District  Judge  (orally) —  *  *  *  Counsel  say 
there  was  no  seal  affixed  to  the  paper  called  a  bond,  and  for  that 
reason  it  was  not  a  legal  bond,  but  admit  that  the  point  is  purely 
technical.  It  has  been  held  that  the  omission  of  a  seal  on  a  removal 
bond  is  a  mere  formal  defect,  which  can  be  cured  by  amendment. 
The  omission  of  the  seal  furnishes  no  sufficient  ground  to  justify 
the  court  in  remanding  the  case.  The  question  whether  a  seal  is 
essential  or  not  depends  upon  the  provisions  of  the  statute.  G.  V. 
B.  Min.  Co.  V.  First  Nat.  Bank,  36  C.  C.  A.  633,  95  Fed.  23,  33. 
It  is  not  made  essential  by  the  statutes  of  the  United  States  or  the 
statutes  of  this  State.  The  statutes  of  the  United  States  do  not, 
in  terras,  require  a  seal.  Section  3  of  the  act  to  regulate  removal 
of  causes,  approved  August  13,  1888,  simply  requires  that  petition- 
ers for  removal  of  a  cause  shall  file  with  their  petition  "a  bond 
with  good  and  sufficient  sureties."    25  Stat.  p.  435.     *     *     * 

Counsel  for  plaintiff  claims  that  there  was  no  order  for  removal 
made  by  the  State  Court.  None  is  necessary.  The  statute  pro- 
vides that  after  the  filing  of  a  petition  and  bond  "it  shall  then 
be  the  duty  of  the  State  Court  to  accept  said  petition  and  bond, 
and  proceed  no  further  in  said  suit."  25  Stat.  1888,  §3.  No 
statute  or  rule  of  practice  requires  a  defendant  to  give  notice  to 
a  plaintiff  of  the  filing  of  a  petition  for  the  removal  of  a  cause 
from  a  State  to  a  Federal  Court. 

Chiatovich  v.  Hanchott  (C.  C),  78  Fed.  193,  194,  and  authori- 
ties there  cited. 

In  Noble  v.  Association  (C.  C),  48  Fed.  337,  338,  the  court  said: 

"Certainly,  it  is  the  decorous  practice  for  the  moving  party 
to  present  his  petition  and  bond  to  the  ,iudge  of  the  State  Court, 
and  obtain  the  formal  acceptance  of  the  court.    It  is  also  the  safer 

1  For  rasoa  illustrating  instancos  of  insiifTiciont  allegations  of  citizenship, 
gee  Grand  Trunk  ]{v.  Co.  v.  Twitchcll,  f)!*  K<m1.  7127,  729,  8  C.  C.  A.  2;{7,  239, 
21  U.  S.  App.  IT),  .18  (1K94);  Dinct  v.  City  of  Dclavan,  117  Fed.  978  (1902); 
Kansas  City  Soiitlicrn  Uy.  (.'o.  v.  rninty,  l.'..!  I'Vd.  l.'J,  If)!!),  60  (I  C.  A.  \m, 
lfir,-H;n  ni't'M);  i.nu-v  V.  American  Central  Ins.  Co.,  109  U.  S.  278,  284-285, 
.'{   S.   Ct.   207,  211,  27    L.    Ed.   9:i2,  9;ir)    (188.'!). 

It  is  sntTicif-nt,  if  the  j)rop('r  jnrisdictional  facts  appear  any  place  in  the 
record  of  the  rase.  Briges  v.  Kpcrry,  9.5  U.  S.  401,  40.3,  24  L.  Ed.  :?90, 
390    (1877).— Ed. 


District  Courts  299 

practice,  because  he  can  thereby  have  an  opportunity  to  obviate 
any  remedial  objections  which  are  suggested  to  their  sufficiency 
in  case  the  court  refuses  to  accept  them.  But  this  is  not  indis- 
pensable, and  when  they  are  brought  to  the  attention  of  the  court 
in  the  manner  prescribed  by  the  statute,  by  filing  them  in  the  suit, 
the  court  can  proceed  no  further,  if  they  are  sufficient.  When 
filed,  they  become  a  part  of  the  record  in  the  cause,  and  the  court 
is  judicially  informed  that  its  power  over  the  cause  has  been  sus- 
pended. ' ' 

In  Eisenmann  v.  Mining  Co.  (C.  C),  87  Fed.  248,  this  court 
said: 

"The  law  is  now  well  settled  *  *  *  that,  when  a  sufficient 
cause  for  removal  is  made  in  the  State  Court,  its  jurisdiction  ends, 
and  no  order  of  the  State  Court  for  removal  is  necessary.  In 
other  words,  upon  the  filing  of  the  petition  for  removal,  accom- 
panied by  a  proper  bond, — the  suit  being  removable  under  the 
statute, — the  jurisdiction  of  the  Federal  Court  immediately  at- 
taches in  advance  of  the  filing  of  the  copy  of  the  record;  and 
whether  that  court  should  retain  jurisdiction  is  for  it,  and  not  for 
the  State  Court,  to  determine." 

See,  also,  Kern  v.  Huidekoper,  103  U.  S.  485,  490,  26  L.  Ed. 
354;  Marshall  v.  Holmes,  141  U.  S.  589,  595,  12  Sup.  Ct.  62,  35 
L.  Ed.  870,  and  authorities  there  cited;  Lund  v.  Railroad  Co. 
(C.  C),  78  Fed.  385;  I  Desty,  Fed.  Proc.  §110,  and  authorities 
there  cited ;  Mecke  v.  Mineral  Co.,  35  C.  C.  A.  151,  93  Fed.  697, 
700.1 


GROTON  BRIDGE  &  MFG.  CO.  v.  AMERICAN  BRIDGE  CO. 

Circuit  Court,  N.  D.  New  York.     1905. 

137  Fed.  284. 

Ray,  District  Judge —  *  *  *  T^g  Removal  Act,  first  part 
of  section  3  of  the  Act  of  August  13,  1888,  c.  866,  25  Stat.  435 
(U.  S.  Comp.  St.  1901,  p.  510),  provides: 

1  Only  a  portion  of  the  case  is  reprinted. 

For  other  cases  dealing  with  irregularities  in  bonds  which  were  held  not 
to  be  fatal,  see,  Hodge  v.  Chicago  &  A.  Ry  Co.,  121  Fed.  48,  49-51,  57  C. 
C.  A.  388,  389-391  (1903)  mistake  in  name  of  district  to  which  removal 
should  be  made;  Mutual  Life  Ins.  Co.  v.  Langley,  145  Fed.  415,  417-419 
(1906)  bond  not  accompanied  by  power  of  attorney  authorizing  the  agent 
to  sign  it;  Chase  v.  Erhart,  198  Fed.  305,  307-308  (1912)  wrong  time  for 
entering  copy  of  record  named;  Ellis  v.  Atlantic  &  Pacific  Railroad,  134 
Mass.   338,   341-342    (1883)    wrong  time   for  entering  copy  of  record  named. 


300  Cases  on  Federal  Procedure 

' '  That  whenever  any  party  entitled  to  remove  any  suit  *  *  * 
may  desire  to  remove  such  suit  from  a  State  Court  to  the  Circuit 
Court  of  the  United  States,  he  may  make  and  file  a  petition  in  such 
suit  in  such  State  Court  at  the  time,  or  any  time  before  the  de- 
fendant is  reciuired  by  the  laws  of  the  State  or  the  rule  of  the  State 
Court  in  which  such  suit  is  brought  to  answer  or  plead  to  the 
declaration  or  complaint  of  the  plaintiff,  for  the  removal  of  such 
suit  into  the  Circuit  Court  to  be  held  in  the  district  where  such 
suit  is  pending,  and  shall  make  and  file  therewith  a  bond,  with 
good  and  sufficient  surety,  for  his  or  their  entering  in  such  Circuit 
Court,  on  the  first  day  of  its  then  next  session,  a  copy  of  the  rec- 
ord in  such  suit,  and  for  paying  all  costs  that  may  be  awarded  by 
the  said  Circuit  Court  if  said  court  shall  hold  that  such  suit  was 
wrongfully  or  improperly  removed  thereto,  and  also  for  their  ap- 
pearing and  entering  special  bail  in  such  suit  if  special  bail  was 
originally  requisite  therein.  It  shall  then  be  the  duty  of  the  State 
Court  to  accept  said  petition  and  bond,  and  proceed  no  further 
in  such  suit ;  and  the  said  copy  being  entered  as  aforesaid  in  said 
Circuit  Court  of  the  United  States,  the  cause  shall  then  proceed 
in  the  same  manner  as  if  it  had  been  originally  commenced  in  the 
said  Circuit  Court." 

As  to  the  first  objection — that  the  petition  and  alleged  under- 
taking were  never  presented  to  the  State  Court — it  clearly  and 
sufficiently  appears  that  the  petition  and  undertaking  were  pre- 
sented to  the  State  Court.  The  plaintiff  admits  in  his  brief,  as 
we  have  seen,  that  Judge  Dickey  was  sitting  in  chambers  when  he 
approved  the  bond  or  undertaking;  and,  as  the  bond  recites  that 
the  defendant  had  petitioned  for  a  removal  of  the  cause  to  the 
Circuit  Court  of  the  United  States,  and  as  the  bond  was  given 
and  its  approval  sought  as  a  necessary  step  in  such  removal,  the 
fair  presumption  is  that  both  the  petition  and  undertaking  were 
before  the  judge  when  he  indorsed  his  approval  on  the  bond.  A 
judge  sitting  in  chambers  constitutes  a  court  when  doing  ex  parte 
business  certainly,  and  a  presentation  of  a  petition  and  bond  for 
removal  1o  a  judge  of  the  Sui)i'ein('  Court  sitting  in  chambers  must 

But  see  Alexandria  Nat.  Rank  v.  Willis  C.  "Rates  Co.j  160  Fed.  839,  841- 
842  (15»08)  name  of  iirinciiial  niis.spelled ;  Missouri  Iv.  &  T.  Ky.  Co.  v. 
Chappell,  liOC)  V.  «i«H,  (HlSnitO  (19i;{)  wronj;  time  for  entering'  copy  of 
reeonl  named,  Wel)l>  v.  Soiitliern  Hy.  Co.,  248  Ked.  (518,  (520-021,  IGO  V,. 
Vj.  a.  .'J18,  r)20-.'i2l  (1918)  mistake  in  name  of  district  in  whose  court  the 
record  should  he  tiled;  (irow  v.  Wiman,  ;{  N.  Y.  St.  Rep.  281,  281-282  (1886) 
Ijond  made  to  "  tiie  jieople  of  the  Stut*-  of  New  York"  instead  of  to  tlie 
plaintiff. — Ed. 


District  Courts  301 

be  sufficient  within  the  intent  and  meaning  of  the  removal  act. 
Were  it  otherwise  it  would  be  within  the  power  of  parties  bring- 
ing actions  in  the  State  Court  to  defeat  removal  entirely.  It  fre- 
quently happens  that  during  the  mouth  of  August  the  Supreme 
Court  of  the  State  of  New  York  has  no  regular  appointed  term  or 
adjourned  term  of  the  court  running.  However,  judges  may  be 
found  in  some  parts  of  the  State  sitting  in  chambers.  Should  a 
suit  be  brought  at  such  time  in  the  State  Court  (one  removable 
to  the  Circuit  Court  of  the  United  States),  and  should  the  defend- 
ant be  unable  to  secure  an  extension  of  time  to  answer  either  by  a 
stipulation  or  order,  can  it  be  possible  that  the  right  of  removal 
is  lost  because  the  petition  and  bond  has  not  been  presented  to 
the  Supreme  Court,  when  in  fact  presented  to  a  judge  of  the 
Supreme  Court  sitting  in  chambers,  and  the  bond  is  approved  by 
such  judge,  and  the  petition  and  bond  are  then  filed  in  the  Su- 
preme Court ;  that  is,  with  the  clerk  of  the  Supreme  Court  in  the 
county  where  the  venue  of  the  action  was  laid?  All  that  the 
Removal  Act  requires  is  that  the  party  entitled  to  remove  the 
cause  shall  make  and  file  a  petition  in  such  suit  in  such  State  Court, 
and  make  and  file  therewith  a  bond  with  good  and  sufficient  surety 
conditioned  as  named.  It  is  not  required  that  the  petition  be  pre- 
sented to  any  judge  or  to  a  court  in  session,  or  that  an  order  be 
made  by  the  court  permitting  the  filing  of  the  petition  or  directing 
the  removal.  But  if  the  proper  construction  of  the  statute  is  that 
the  petition  and  bond  must  first  be  presented  to  the  court  before 
they  are  filed  in  the  court,  it  is  clear  that  they  have  been  presented 
to  the  court  and  in  the  court  when  presented  to  a  judge  of  the 
court  sitting  in  chambers,  for  a  judge  of  the  Supreme  Court  sitting 
in  chambers  is  authorized  to  grant  ex  parte  orders  and  transact 
any  business  not  requiring  notice  to  the  other  party.  No  notice 
to  the  other  party  is  required  in  these  removal  proceedings.  And 
it  is  settled  that  "the  presenting  of  the  petition  to  a  judge  in  cham- 
bers and  the  filing  of  it  in  the  State  Court  satisfies  the  statute." 
Remington  v.  Central  Pac.  R.  Co,  (U.  S.  S.  C,  not  yet  reported, 
but  decided  April  17,  1905,  No.  460)  25  Sup.  Ct.  577,  49  L.  Ed,  — ; 
Noble  V.  M.  B.  Ass'n  (C.  C),  48  Fed.  337 ;  Loop  v.  Winter's  Est. 
(C.  C),  115  Fed.  362.  If  the  petition  filed  makes  a  proper  case, 
and  the  bond  is  sufficient  and  in  accordance  with  the  statute  the 
cause  is  removed  from  the  State  Court  to  the  Circuit  Court  of 
the  United  States  when  such  petition  and  bond  are  filed  in  the 
State  Court,  even  if  that  court  makes  an  order  refusing  the  appli- 
cation for  removal.     In  that  case  Mrs.  Marshall  filed  a  petition 


302  Cases  on  Federal  Procedure 

accompanied  by  a  proper  bond  for  the  removal  of  her  suit  from 
the  State  Court  into  the  Circuit  Court  of  the  United  States  upon 
the  grounds  that  she  was  a  citizen  of  New  York  and  the  defend- 
ants, respectively,  were  citizens  of  Mississippi  and  Louisiana,  and 
that  the  controversy  was  wholly  between  citizens  of  different 
States,  and  that  it  could  be  fully  tried  and  determined  between 
them.  The  State  Court  made  an  order  refusing  the  application 
for  removal.  The  Supreme  Court  of  the  United  States  held  and 
decided : 

"Upon  the  filing  of  a  proper  petition  and  bond  for  the  removal 
of  a  cause  pending  in  a  State  Court,  such  cause,  if  removable 
under  the  Act  of  Congress,  is,  in  law,  removed  so  as  to  be  docketed 
in  the  Circuit  Court  of  the  United  States,  notwithstanding  the 
State  Court  may  refuse  to  recognize  the  right  of  removal." 

In  the  opinion.  Justice  Harlan,  speaking  for  the  court,  said: 

"After  the  filing  of  the  petition  for  removal  accompanied  by  a 
sufiicient  bond,  and  alleging  that  the  controversy  was  wholly  be- 
tween citizens  of  difi'erent  States,  the  State  Court  was  without  au- 
thority to  proceed  further  if  the  suit,  in  its  nature,  is  one  of  which 
the  Circuit  Court  of  the  United  States  could  rightfully  take  juris- 
diction. If,  under  the  Act  of  Congress,  the  cause  was  removable, 
then,  upon  the  filing  of  the  above  petition  and  bond,  it  was  in  law 
removed  so  as  to  be  docketed  in  that  court,  notwithstanding  the 
order  of  the  State  Court  refusing  to  recognize  the  right  of  re- 
moval." 

It  is  not  questioned  that  on  the  approval  of  the  bond  by  a  judge 
of  the  State  Court  sitting  in  chambers  both  the  petition  and  bond 
were  filed  with  the  clerk  of  the  court ;  that  is,  with  the  county  clerk 
of  the  County  of  Tompkins,  N.  Y.,  who,  by  the  Constitution  of  the 
State  of  New  York  (article  6,  §  19),  is  made  the  clerk  of  the  Su- 
preme Court  in  the  County  of  Tompkins.  The  filing  of  these 
papers  with  the  clerk  of  the  court  was  clearly  a  filing  in  and  with 
Ihe  court.  To  hold  otherwise  would  bo  to  hold  that  papers  cannot 
be  filed  in  the  Supreme  Court  only  when  the  Supreme  Court  is 
in  session  in  the  county  where  the  filing  is  required  to  be  made. 
In  Tompkins  County  a  term  of  the  Supreme  Court  is  held  but 
three  or  four  times  in  the  course  of  a  j'car  and  these  sessions  last 
from  two  to  three  weeks,  so  that  at  least  eight  months  in  the  year 
the  Supreme  Court  is  not  in  session  in  Toini)kins  County,  and 
hence,  under  the  construction  of  the  statute  claimed  by  the  plain- 
tiff, it  would  be  impossible  to  make  and  file  a  petition  in  a  remov- 
able cause  in  the  State  Court,  venue  laid  in  the  County  of  Tomp- 


District  Courts  303 

kins,  for  about  eight  months  in  the  year.  In  this  case  the  bond 
and  petition  were  filed  December  30,  1904,  and  on  the  5th  day  of 
January,  1905,  a  copy  of  the  record  on  removal,  including  such 
petition  and  bond,  was  served  on  the  plaintiff's  attorneys,  and 
the  record  on  removal  so  shows.  See,  on  this  subject,  Fisk  v.  Union 
Pacific  R.  Co.,  9  Fed.  Cas.  149,  6  Blatchf.  362.  These  cases  were 
under  a  prior  statute,  but  the  statute  was  substantially  that  of  the 
act  as  it  now  reads.  See  also  Removal  Cases,  100  U.  S.  457,  25 
L.  Ed.  593 ;  U.  S.  Supreme  Court  Practice,  May,  page  203. 

Of  course,  a  bond  or  undertaking  should  be  presented  to  a  judge 
of  the  Supreme  Court,  and  approval  of  the  sufficiency  of  the  surety 
obtained.  But  should  the  court  arbitrarily  refuse  to  approve  a 
surety,  it  cannot  be  doubted  that  the  removing  party  would  have 
the  right  to  file  the  bond  and  petition,  procure  the  filing  of  the 
record  on  removal,  and  proceed  in  the  Circuit  Court  of  the  United 
States.  The  remedy  of  the  plaintiff  in  such  a  case  would  be  to 
move  to  remand  and  show  the  insufficiency  of  the  surety,  and  that 
the  judge  of  the  State  Court  was  justified  in  refusing  to  approve 
the  bond.     *     *     * 

The  second  and  third  grounds  of  the  motion  to  remand  will  be 
considered  together.  They  relate  to  the  sufficiency  of  the  bond 
filed.  This  bond  says :  * '  Know  all  men  by  these  presents,  that  the 
American  Bonding  Company  of  Baltimore  (describing  its  office 
and  place  of  business  in  the  City  of  New  York,  N.  Y.),  is  held  and 
firmly  bound  unto  Groton  Bridge  &  Manufacturing  Company  in 
the  penal  sum  of  five  hundred  dollars  for  the  payment  whereof 
well  and  truly  to  be  made  unto  the  said  Groton  Bridge  and  Manu- 
facturing Company,  its  representatives  and  assigns,  it  binds  itself, 
its  representatives,  successors  and  assigns,  firmly  by  these  pres- 
ents." Then  follow  the  conditions  before  given.  Then,  "In  wit- 
ness whereof,"  etc.,  the  signature  and  attestation,  and  all  the  other 
formalities  required.  This  is  clearly  a  bond,  but  it  is  not  signed 
by  the  defendant,  and  the  liability  of  the  bonding  companj^  is  lim- 
ited to  $500.  These  are  the  objections  presented.  The  Removal 
Act  does  not  in  terms  require  that  the  bond  be  signed  by  the  re- 
moving party.  He  is  to  make  and  file  with  the  petition  a  bond 
with  good  and  sufficient  surety.  It  was  held  that  it  is  unnecessary 
for  the  removing  party  to  sign  the  bond  under  section  3  of  the 
Act  of  1875,  18  Stat.  471,  c.  137.  Stevens  v.  Richardson  (C.  C), 
9  Fed.  191;  P.  G.  &  S.  Exc.  v.  W.  U.  Tel.  Co.  (C.  C),  16  Fed.  289; 
People's  Bank  of  G.  v.  Aetna  L.  Ins.  Co.  (C.  C),  53  Fed.  161.  In 
Stevens  v.  Richardson,  supra,  Blatchford_,  J.,  said: 


304  Cases  on  Federal  Procedure 

"The  plaintiff  contends  that,  as  section  3  of  the  Act  of  1875 
says  that  the  petitioner  for  removal  is  to  'make  and  file'  the  bond, 
the  bond  is  void  and  the  removal  invalid.  This  objection  is  not 
tenable.  The  statute  is  satisfied,  as  to  the  bond,  if  a  bond  with 
sufificient  surety  is  filed.  The  petitioner  for  removal  makes  the 
bond,  in  the  sense  of  the  statute,  if  he  offers  it  to  the  court  as  the 
bond  required.  By  section  639  of  the  Revised  Statutes  he  was 
required  to  offer  good  and  sufficient  surety.  The  Act  of  1875 
means  no  more. 

The  other  cases  cited,  one  in  the  Northern  District  of  Illinois  and 
the  other  in  the  District  of  South  Carolina,  hold  the  same. 

The  objection  that  the  bond  names  a  penal  sum  is  equally  unten- 
able. It  is  true  that  the  statute  says  nothing  of  a  penal  sum,  but 
that  the  bond  is  to  be  "for  his  or  their  entering  in  such  Circuit 
Court,  on  the  first  day  of  its  then  next  session,  a  copy  of  the  rec- 
ord in  such  suit,  and  for  paying  all  costs  that  may  be  awarded 
by  the  said  Circuit  Court  if  said  court  shall  hold  that  such  suit 
was  wrongfulh'  or  improperly  removed  thereto,  and  also  for  their 
appearing  and  entering  special  bail  in  such  suit  if  special  bail  was 
originallj'  requisite  therein."  It  has  been  held  more  than  once 
that  it  is  proper  to  insert  a  penal  sum  in  the  bond,  and  the  forms 
prescribed  by  writers  are  uniform  in  inserting  a  penal  sum.  Com. 
of  Kentucky  v.  Louisville  Bridge  Co.  (C.  C),  42  Fed.  242;  Johnson 
v.  F.  C.  Austin  Mfg.  Co.  (C.  C),  76  Fed.  616;  Fosters  Fed.  Prac- 
tice (3d  Ed.)  p.  931,  §  385b;  Desty's  Federal  Proc.  (Tebbs,  1899) 
p.  808;  Field,  Fed.  Courts,  767;  Bump's  Fed.  Proc.  909;  Hughes' 
Fed.  Proc.  332.  Foster  says,  "The  bond  should  name  a  specific 
sum  as  the  penalty."  Clearly,  this  bond  will  cover  all  costs  and 
damages  that,  in  any  event,  can  be  awarded.  The  record  on  re- 
moval has  been  filed  and  in  this  ease  no  special  bail  is  required. 
The  bond  was  accepted  by  the  State  Court,  and  this  court  deems 
it  ample. 

In  Commonwealth  of  Kentucky  v.  Louisville  Bridge  Co.,  supra, 
the  court  said,  page  242: 

"Tho  bonds  which  woi-e  executed  by  the  defendants  and  ac- 
ceplfd  l)y  the  Slate  Court  ai-e  each  in  the  penalty  of  $500,  and  are 
in  conformity  with  the  i)rovisions  of  the  statute  in  every  respect, 
unless  a  i)cnalty  is  imi)r(iper.  It  is  claimed  that  the  third  section 
of  the  Act  of  :\Taivli  3,  1875  (18  Sl;i1.  471,  e.  137)  as  amended  by 
the  Ad  of  .M;inli  :!.  1887  (24  Slat.  552.  e.  373),  provides  for  a 
bond  unlimited  in  extent,  and  one  nol  lo  be  limited  by  a  fixed 
l)cn;ilty,  ;in(]   therefore  these  bonds  are  fatally  defective,  and,  as 


District  Courts  305 

the  execution  of  a  proper  bond  is  jurisdictional,  this  case  should 
be  remanded  for  that  reason.  Whether  the  execution  of  a  valid 
and  proper  bond  under  this  act  and  the  Act  of  March  3,  1875,  is 
jurisdictional,  has  been  much  discussed ;  and  the  Circuit  Courts 
have  differed  in  opinion.  See  Burdick  v.  Hale,  7  Bliss.  96,  Fed. 
Cas.  No.  2,147 ;  Torrey  v.  Locomotive  Works,  14  Blatchf .  269,  Fed. 
Cas.  No.  14,105;  Deford  v.  Mehaffy  (C.  C),  13  Fed.  481;  Harris  v. 
Eailroad  Co.  (C.  C),  18  Fed.  833.  But  that  question  does  not 
arise  in  this  case,  as  I  think  the  bonds  which  were  executed  by 
defendants,  and  accepted  by  the  State  Court,  are  valid  bonds  to 
the  extent  of  the  penalty,  and  the  penalties  are  sufficient  to  cover 
the  cost  likely  to  accrue  in  this  case.  It  may  be  that  a  bond  with- 
out a  penalty  would  be  good  under  the  statute;  but  the  act  does 
not  prohibit  a  bond  with  a  penalty,  although  it  does  prescribe  the 
obligations  under  which  the  obligor  must  come.  I  therefore  think 
the  State  Court  properly  accepted  these  bonds  with  a  penalty,  as 
the  obligations  conformed  to  the  provisions  of  the  act.  Both  Field 
and  Bump  give  forms  of  removal  bonds  with  a  penalty.  See  Field, 
Fed.  Courts,  767;  Bump,  Fed.  Proc.  909." 

In  Hughes'  Fed.  Proc.  p.  332,  the  author  says: 

''It  will  be  observed  that  the  statute  does  not  name  any  fixed 
amount  as  a  penalty.  There  is  some  difference  of  opinion  among 
the  courts  whether  a  bond  should  name  a  penalty  or  not.  It  would 
seem  to  be  the  correct  practice  to  name  a  penalty,  but  the  penalty 
named  should  be  sufficiently  large  to  cover  all  possible  costs  in 
the  event  of  a  remand ;  and  if  it  is,  the  better  opinion  is  that  the 
bond  would  be  in  proper  form."  ^ 


TEXARKANA  TELEPHONE  CO.  v.  BRIDGES. 

Supreme  Court  of  Arkansas.     1905. 

75  Ark.  116,  86  8.  W.  841. 

In  this  action  two  defendants  were  alleged  in  the  complaint  to 
be  foreign  corporations,  but  the  complaint  contained  no  allegation 

1  Only  a  portion   of   the   opinion   is   reprinted. 

The  mere  filing  of  the  petition  and  bond  in  the  office  of  the  clerk  of  the 
state  court  is  insufficient.     Fox  v.  Southern  Ry.  Co.,  80  Fed.  945,  948  (1897). 

As  to  the  effect  of  an  oral  motion  for  the  removal  of  a  cause,  see  Mays 
V.   Newlin,  143   Fed.   575,  577    (1906). 

A  bond  which  merely  leaves  a  blank  space  instead  of  naming  a  penal  sum 

\\Tieaton  C.  F.  P.— 20 


306  Cases  on  Federal  Procedure 

as  to  whether  the  street  railway  companj^  which  was  joined  as  a 
defendant  was  a  corporation.  The  two  defendants  described  as 
foreign  corporations  filed  a  petition  and  bond  for  removal  to  the 
Federal  Court,  stating  that  the  street  railway  company  was  not 
a  corporation,  but  a  trade-name  under  which  one  of  two  individuals 
was  doing  business,  and  that  neither  of  such  persons  had  been 
served  with  process  or  were  parties  to  the  suit. 

McCuLLoCH,  J.  (after  stating  the  facts). — The  right  of  re- 
moval of  a  cause  from  a  State  to  the  Federal  Court,  so  far  as  con- 
cerns the  action  of  the  State  Court,  depends  upon  and  must  be 
determined  by  the  condition  of  the  record  in  the  State  Court  at 
the  time  the  removal  is  sought  (Chesapeake  &  Ohio  Railway  Com- 
pany v.  Dixon,  179  U.  S.  131,  21  Sup.  Ct.  67,  45  L.  Ed.  121)  ;  and, 
where  the  alleged  ground  for  removal  is  the  diverse  citizenship 
of  the  parties,  the  allegations  of  the  petition  alone  can  be  looked 
to  by  the  State  Court,  in  determining  the  right  of  removal.  The 
State  Court  has  no  jurisdiction  to  try  an  issue  of  fact  raised  on 
the  petition  for  removal.  This  can  only  be  done  by  the  Federal  Court 
on  motion  to  remand  after  removal,  L.  R.  M.  R.  &  T.  Rj*.  Co.  v. 
Iredell,  50  Ark.  388,  8  S.  W.  21;  Moon  on  Removal  of  Causes, 
p.  498 ;  Burlington  Railway  Co.  v.  Dunn,  122  IT.  S.  514,  7  Sup.  Ct. 
1262,  30  L.  Ed.  1159 ;  Kansas  City,  Ft.  S.  &  M.  Ry.  Co.  v.  Daugh- 
try,  138  U.  S.  306,  11  Sup.  Ct.  306,  34  L.  Ed.  963 ;  Southern  Ry. 
Co.  V.  Hudgins,  107  Ga.  334,  33  S.  E.  442,  Stix  v.  Keith,  90  Ala. 
121,  7  South  423;  Craven  v.  Turner,  82  Me.  383,  19  Atl.  864. 
Chief  Justice  Waite,  speaking  for  the  Supreme  Court  of  the 
United  States  in  the  case  of  Burlington  v.  Dunn,  supra,  concisely 
defines  the  rule  of  practice  with  reference  to  removal  of  causes 
as  follows:  "The  theory  on  which  it  rests  is  that  the  record 
closes,  so  far  as  the  question  of  removal  \is  concerned,  when  the 
petition  for  removal  is  filed  and  necessary  security  furnished.  It 
presents  then  to  the  State  Court  a  pure  question  of  law,  and  that 
is  whether,  admitting  the  facts  stated  in  the  petition  for  removal 
to  bo  true,  it  appears  on  the  face  of  the  record,  which  includes  the 

is  in.suflQrient.  Burdick  v.  ITa]c,  4  Fed.  Cas.  No.  2,147,  p.  721,  7  Bissell 
DO    (1X76). 

K<'f  further,  ns  to  rontcnta  of  bond,  Hayes  v.  Todd,  34  Fla.  2.33,  238, 
ir,  Ho.  752,  7r)4  (1H94);  Cooke  v.  ReliKtiiaii,  7  Fed.  26.S,  269  (1880);  Harrold 
V.  Arrinuton,  (M  Tex.  2:;.'!,  2.{.'')-2:{7  (1SS.'")^;  V..  C.  (\  &  St.  L.  Ry.  Co.  v. 
Monn^hari,    14(l    III.   ■174,"   \H\,   :!0   N.    F.    ,S()9,   871    (1892). 

A  liond  not  si^m  d  hy  tlic  (irincipal  is  insuflicient.  RoukIi  v.  Booth,  3  Pac 
91     (1884).— Ed. 


District  Courts  307 

petition  and  the  pleadings  and  proceedings  down  to  that  time, 
that  the  petitioner  is  entitled  to  a  removal  of  the  suit."  The  only 
question,  then,  which  we  have  to  determine  is  whether  the  record 
upon  the  filing  of  the  petition  showed  a  right  of  removal  by  appel- 
lants, two  foreign  corporations.  There  is  no  allegation  in  the  com- 
plaint that  the  other  defendant  named,  the  Texarkana  Street  Rail- 
way Company,  is  a  corjioration,  either  domestic  or  foreign.  The 
petition  for  removal  states  that  the  railway  company  is  not  a 
corporation,  but  is  a  trade-name  under  which  either  Bamboff  or 
Crouch  is  doing  business  and  that  neither  of  those  persons  have 
been  served  with  process  or  are  parties  to  the  suit.  According  to 
these  allegations,  the  two  appellants  were  the  only  defendants  to 
the  action,  and  were  therefore  entitled  to  have  the  cause  removed. 
Upon  this  showing  made  by  the  petition  the  Federal  statute  made 
it  the  duty  of  the  Circuit  Court  "to  accept  said  petition  and  bond 
and  proceed  no  further  in  the  suit."  All  further  proceedings  in 
that  court  were  without  jurisdiction,  erroneous,  and  void.^ 


GIBSON  V.  MISSISSIPPI. 

Supreme  Court  of  the  United  States.     1896. 

162  U.  S.  565, 16  S.  Ct.  904,  40  L.  Ed.  1075. 

Mr.  Justice  Harlan,  after  stating  the  case,  delivered  the  opin- 
ion of  the  court. 

The  first  question  presented  for  our  consideration  relates  to  the 
application  of  the  accused  for  the  removal  of  the  prosecution  from 
the  State  Court  into  the  Circuit  Court  of  the  United  States. 
By  section  641  of  the  Revised  Statutes  it  is  provided : 
"When  any  civil  suit  or  criminal  prosecution  is  commenced  in 
any  State  Court,  for  any  cause  whatsoever,  against  any  person  who 
is  denied  or  cannot  enforce  in  the  judicial  tribunal  of  the  State, 
or  in  the  part  of  the  State,  where  such  suit  or  prosecution  is  pend- 
ing, any  right  secured  to  him  by  any  law  providing  for  the  equal 
rights  of  citizens  of  the  United  States,  *  *  *  such  suit  or 
prosecution  may,  upon  the  petition  of  such  defendant,  filed  in  said 

1  The  facts  are  restated,  and  a  portion  of  the  opinion  is  omitted. 
As  to  the  effect  of  merely  filing  the  petition,  see   Colorado   Fuel  &  Iron 
Co.  V.  Four  Mile  Ry.  Co.,  29  Colo.  90,  93,  66  Pac  902,  903   (1901).— Ed. 


308  Cases  on  Federal  Procedure 

State  Court  at  any  time  before  the  trial  or  final  hearing  of  the 
cause,  stating  the  facts  and  verified  by  oath,  be  removed,  for  trial, 
into  the  next  Circuit  Court  to  be  held  in  the  district  where  it  is 
pending.  Upon  the  filing  of  such  petition  all  further  proceedings 
in  the  State  Court  shall  cease,"  etc. 

In  Neal  v.  Delaware,  103  U.  S.  370,  386,  reference  was  made  to 
the  previous  cases  of  Strauder  v.  West  Virginia,  Virginia  v.  Eives 
and  Ex  parte  Virginia,  100  U.  S.  303,  313,  339,  and  to  sections 
641  and  1977  of  the  Revised  Statutes ;  also  to  the  Act  of  March  1, 
1875,  c.  114,  18  Stat.  335,  which,  among  other  things,  declared  that 
"no  citizen,  possessing  all  other  qualifications  which  are  or  may 
be  prescribed  by  law,  shall  be  disqualified  from  service  as  grand 
or  petit  juror  in  any  court  of  the  United  States,  or  of  any  State, 
on  account  of  race,  color  or  previous  condition  of  servitude."  The 
cases  cited  were  held  to  have  decided  that  the  statutory  enact- 
ments referred  to  were  constitutional  exertions  of  the  power  of 
Congress  to  enact  appropriate  legislation  for  the  enforcement  of 
the  provisions  of  the  Fourteenth  Amendment,  which  was  designed, 
primarily,  to  secure  to  the  colored  race,  thereby  invested  with  the 
rights,  privileges  and  responsibilities  of  citizenship,  the  enjoy- 
ment of  all  the  civil  rights  that,  under  the  law,  are  enjoyed  by 
white  persons;  that  while  a  State,  consistently  with  the  purposes 
for  which  the  amendment  was  adopted,  may  confine  the  selection 
of  jurors  to  males,  to  freeholders,  to  citizens,  to  persons  within  cer- 
tain ages,  or  to  persons  having  educational  qualifications,  and  while 
a  mixed  jury  in  a  particular  case  is  not,  within  the  meaning  of  the 
Constitution,  alwaj^s  or  absolutely  necessary  to  the  enjoyment  of 
the  equal  protection  of  the  laws,  and  therefore  an  accused,  being 
of  the  colored  race,  cannot  claim  as  matter  of  right  that  his  race 
shall  be  represented  on  the  jury,  yet  a  denial  to  citizens  of  the 
African  race,  because  of  their  color,  of  the  right  or  privilege  ac- 
corded to  white  citizens  of  participating  as  jurors  in  the  adminis- 
tration of  justice  would  be  discrimination  against  the  former  in- 
consistent with  the  amendment  and  within  the  power  of  Congress, 
])y  approjjriate  legislation,  to  prevent;  that  to  compel  a  colored 
man  1o  submit  to  a  trial  before  a  jury  drawn  from  a  panel  from 
which  were  excluded,  because  of  their  color,  men  of  his  race,  how- 
ever well  (jualificd  by  education  and  character  to  discharge  the 
functions  of  jurors,  was  a  denial  of  tlie  equal  protection  of  the 
laws;  and  Ihat  such  exclusion  of  the  black  race  from  juries  be- 
cause (»f  their  color  was  not  less  forbidden  by  law  than  would  be 


District  Courts  '  309 

the  exclusion  from  juries,  in  States  where  the  blacks  have  the  ma- 
jority, of  the  white  race  because  of  their  color. 

But  those  cases  were  held  to  have  also  decided  that  the  Four- 
teenth Amendment  was  broader  than  the  provisions  of  section  641 
of  the  Revised  Statutes ;  that  since  that  section  authorized  the  re- 
moval of  a  criminal  prosecution  before  trial,  it  did  not  embrace  a 
case  in  which  a  right  is  denied  by  judicial  action  during  a  trial, 
or  in  the  sentence,  or  in  the  mode  of  executing  the  sentence;  that 
for  such  denials  arising  from  judicial  action  after  a  trial  com- 
menced, the  remedy  lay  in  the  revisory  power  of  the  higher  courts 
of  the  State,  and  ultimately  in  the  power  of  review  which  this 
court  may  exercise  over  their  judgment  whenever  rights,  privi- 
leges or  immunities  claimed  under  the  Constitution  or  laws  of  the 
United  States  are  withheld  or  violated ;  and  that  the  denial  or  in- 
ability to  enforce  in  the  judicial  tribunals  of  the  States  rights 
secured  by  law  providing  for  the  equal  civil  rights  of  citizens  of 
the  United  States,  to  which  secton  641  refers,  and  on  account  of 
which  a  criminal  prosecution  may  be  removed  from  a  State  Court, 
is  primarily,  if  not  exclusively,  a  denial  of  such  rights  or  an  inabil- 
ity to  enforce  them  resulting  from  the  constitution  or  laws  of  the 
State,  rather  than  a  denial  first  made  manifest  at  or  during  the 
trial  of  the  case. 

We  therefore  held  in  Neal  v.  Delaware  that  Congress  had  not 
authorized  a  removal  of  the  prosecution  from  the  State  Court 
where  jury  commissioners  or  other  subordinate  officers  had,  with- 
out authority  derived  from  the  constitution  and  laws  of  the  State, 
excluded  colored  citizens  from  juries  because  of  their  race. 

In  view  of  their  decision,  it  is  clear  that  the  accused  in  the  present 
case  was  not  entitled  to  have  the  case  removed  into  the  Circuit 
Court  of  the  United  States  unless  he  was  denied  by  the  constitution 
or  laws  of  Mississippi  some  of  the  fundamental  rights  of  life  or 
liberty  that  were  guaranteed  to  other  citizens  resident  in  that 
State.  The  equal  protection  of  the  laws  is  a  right  now  secured  to 
every  person  without  regard  to  race,  color  or  previous  condition  of 
servitude;  and  the  denial  of  such  protection  by  any  State  is  for- 
bidden by  the  supreme  law  of  the  land.  These  principles  are 
earnestly  invoked  by  counsel  for  the  accused.  But  they  do  not 
support  the  application  for  the  removal  of  this  case  from  the 
State  Court  in  which  the  indictment  was  found,  for  the  reason 
that  neither  the  constitution  of  Mississippi  nor  the  statutes  of  that 
State  prescribe  any  rule  for,  or  mode  of  procedure  in,  the  trial  of 
criminal  cases  which  is  not  equally  applicable  to  all  citizens  of 


310  Cases  on  Federal  Procedure 

the  United  States  and  to  all  persons  within  the  jurisdiction  of  the 
State  without  regard  to  race,  color  or  previous  condition  of  servi- 
tude. Nor  would  we  be  justified  in  saying  that  the  constitution 
and  laws  of  the  State  had,  at  the  time  this  prosecution  was  insti- 
tuted, been  so  interpreted  by  the  Supreme  Court  of  Mississippi 
as  to  show,  in  advance  of  a  trial,  that  persons  of  the  race  to  which 
the  defendant  belongs  could  not  enforce  in  the  judicial  tribunals 
of  the  State  the  rights  belonging  to  them  in  common  with  their 
fellow-citizens  of  the  white  race.  If  such  had  been  the  case,  it 
might  well  be  held  that  the  denial  of  the  equal  protection  of  the 
laws  arose  primarily  from  the  constitution  and  laws  of  the  State. 
But  when  the  constitution  and  laws  of  a  State,  as  interpreted  by 
its  highest  judicial  tribunal,  do  not  stand  in  the  way  of  the  en- 
forcement of  rights  secured  equally  to  all  citizens  of  the  United 
States,  the  possibility  that  during  the  trial  of  a  particular  case 
the  State  Court  may  not  respect  and  enforce  the  right  to  the  equal 
protection  of  the  laws  constitutes  no  ground,  under  the  statute,  for 
removing  the  prosecution  into  the  Circuit  Court  of  the  United 
States  in  advance  of  a  trial.     *     *     * 

In  his  petition  for  the  removal  of  the  prosecution  into  the  Cir- 
cuit Court  of  the  United  States  the  defendant  also  states  that, 
notwithstanding  at  the  time  of  selecting  the  grand  jurors  for  the 
said  December  term,  1892,  there  were  in  the  five  supervisors'  dis- 
tricts of  the  County  of  Washington  7,000  colored  citizens  compe- 
tent for  jury  service  and  1,500  whites  qualified  to  serve  as  jurors, 
there  had  not  been  for  a  number  of  years  any  colored  man  sum- 
moned on  the  gi'and  jury  in  that  county ;  and  that  colored  ciiizens 
were  purposely,  on  account  of  their  color,  excluded  from  jury 
service  by  the  officers  of  the  law  charged  with  the  selection  of 
jurors.  It  is  clear,  in  view  of  what  has  alreadj'^  been  said,  that 
these  facts,  even  if  they  had  been  proved  and  accepted,  do  not 
«how  that  the  rights  of  the  accused  were  denied  by  the  constitution 
and  laws  of  the  State,  and  therefore  did  not  authorize  the  removal 
of  the  prosecution  from  the  State  Court.  If  it  were  competent, 
in  a  prosecution  of  a  citizen  of  African  descent,  to  prove  that  the 
officers  in  charge  with  the  duty  of  selecting  grand  jurors  had,  in 
previous  years  and  in  other  cases,  excluded  citizens  of  that  race, 
because  of  their  race,  from  service  on  grand  juries — upon  which 
question  we  need  not  express  an  opinion — it  is  clear  that  such 
evidence  would  be  for  tlie  consideration  of  the  trial  court  upon  a 
motion  by  the  accused  to  f|njisli  tlio  indictment,  such  motion  being 
based  ni)iiii  flic  ground  that   tlic  indiclmciit  against  him  had  been 


District  Courts  311 

returned  by  a  grand  jury  from  which  were  purposely  excluded, 
because  of  their  color,  all  citizens  of  the  race  to  which  he  be- 
longed. United  States  v.  Gale,  109  U.  S.  65,  69.  But  there  was 
no  motion  to  quash  the  indictment.  The  application  was  to  remove 
the  prosecution  from  the  State  Court,  and  a  removal,  as  we  have 
seen,  could  not  be  ordered  upon  the  ground  simply  that  citizens  of 
African  descent  had  been  improperly  excluded,  because  of  their 
race,  and  without  the  sanction  of  the  constitution  and  laws  of  the 
State,  from  service  on  previous  grand  juries,  or  from  service  on 
the  particular  grand  jury  that  returned  the  indictment  against 
the  accused.^ 


JONES  V.  FOSTER. 

Supreme  Court  of  Wisconsin.     1884. 

61  Wis.  25,  20  N.  W.  785. 

Cassoday,  J. — Two  trials  of  the  cause  having  been  had  prior 
to  the  application  for  removal,  it  was  manifestly  not  made  "before 
or  at  the  term  at  which  said  cause  could"  have  been  "first  tried," 
within  the  meaning  of  the  third  section  of  chapter  137,  March  3, 
1875  (1  Supp.  Rev.  St.  U.  S.  174).  This  is  conceded  by  counsel 
for  the  appellant.  It  is  claimed,  however,  that  the  application 
was  not  too  late  to  remove  the  cause  under  the  second  and  third 
subdivisions  of  section  639,  U.  S.  Rev.  St.  114.  This  court  has 
recently  held  that  the  second  subdivision  of  that  section,  which 
authorized  a  removal  merely  on  the  ground  of  citizenship,  was,  in 
effect,  superseded  and  repealed  by  the  Act  of  March  3,  1875.  El- 
dred  v.  Becker,  18  N.  W.  Rep.  642.  See,  also,  Ct.  Rep.  312 ;  Hol- 
land v.  Chambers,  3  Sup.  Ct.  Rep.  427.     *     *     * 

Was  the  petition  here  "filed  at  any  time  before  the  trial  or  final 
hearing  of  the  suit, ' '  within  the  meaning  of  subdivision  3,  §  639, 

1  Only  a  portion  of  the  opinion  is  reprinted. 

For  other  cases  dealing  with  the  question  as  to  whether  or  not  the  peti- 
tioner has  been  deprived  of  his  equal  rights,  see  Texas  v.  Gaines,  23  Fed. 
Cas.  No.  13,847,  p.  869.  2  Woods,  342  (1874)  ;  State  of  Alabama  v.  WoIflFe. 
18  Fed.  836,  838-841  (1883);  State  of  California  v.  Chue  Fan,  42  Fed.  86.5 
(1890);  Scott  V.  R.  D.  Kinney  &  Co..  137  Fed.  1009  (1905);  State  of  New 
Jersey  v.  Corrigan,  139  Fed.  758  (1905)  ;  Commonwealth  of  Kentucky  v. 
Wendling,  182  Fed.  140;  Kentucky  v.  Powers.  201  U.  S.  1,  26  S.  Ct.  "387, 
50  L.   Ed.  633    (1906).— Ed. 


312  Cases  on  Federal  Procedure 

U.  S.  Rev.  St.  ?  Counsel  for  the  appellant  claim  that  it  was,  and, 
in  support  of  his  contention,  cites  Ins.  Co.  v.  Dunn,  19  Wall,  214 ; 
Whitehouse  v.  Ins.  Co.,  2  Fed.  Rep.  498;  Bible  Society  v.  Grove, 
101  U.  S.  610 ;  Stone  v.  Sargent,  129  Mass.  511.  Ins.  Co.  v.  Dunn, 
supra,  was  not  under  that  subdivision,  nor  under  the  Act  of  1866, 
where  the  language  was,  "at  any  time  before  the  trial  or  final 
hearing  of  the  cause,"  but  was  under  the  Act  of  1867,  where  the 
language  was,  "at  any  time  before  the  final  hearing  or  trial  of  the 
suit."  It  was  there  held  that  the  word  "final"  not  only  qualified 
the  word  "hearing,"  immediately  following  it,  but  also  the  word 
"trial"  connected  with  it  by  the  disjunctive  "or."  It  is  there 
said  that  "if  the  difference  in  the  Act  of  1867  be  material,  it  is 
fair  to  presume  that  the  change  was  deliberately  made  to  obviate 
doubts  that  might  possibly  have  arisen  under  the  former  act,  and 
to  make  the  latter  more  comprehensive." 

When  the  language  of  the  Act  of  1867  was,  by  the  revision  of 
1873-74,  changed  back  to  substantially  what  it  was  in  the  Act  of 
1866,  the  difference  was  equally  material,  and  the  change  equally 
deliberate.  Bible  Society  v.  Grove,  supra,  had  been  tried  three 
times  before  the  Act  of  March  3,  1875,  was  passed  and  once  after- 
wards. The  real  questions  determined  were  that  no  removal  could 
be  made  except  upon  the  petition  of  a  citizen  of  some  other  State 
than  the  one  in  which  the  suit  was  brought,  and  that  a  trial 
and  disagreement  of  the  jury  after  the  passage  of  the  act 
precluded  any  removal  thereafter.  The  question  here  presented 
was  not  involved.  True,  the  opinion  states,  that  "the  Act  of 
March  3,  1875,  has  not  changed  this  provision  (subd.  3,  §  639,  U.  S. 
Rev.  St.)  of  the  Revised  Statutes.  Removals  for  this  cause  (preju- 
dice or  local  influence)  still  depend  on  that  section  (subdivision), 
which  is  a  reproduction  of  the  Act  of  1867," — meaning,  as  we 
apprehend,  a  reproduction  of  the  part  relating  to  prejudice  or 
lofal  influence,  and  not  llie  part  relating  to  the  time  of  making 
the  application,  wliich  is,  in  substance,  a  reproduction  of  the  Act 
of  July  27,  1866.  In  Stone  v.  Sargent,  supra,  the  case  had  been 
referred  to  an  auditor,  who  bad  made  and  returned  his  report, 
and  the  same  was  upon  the  trial  list,  ])nl  had  not  been  tried  when 
thf  api)lication  was  made;  and  it  was  simply  lield  that  the  hearing 
before  the  auditor  was  "not  a  trial"  within  the  meaning  of  sub- 
division 3,  §  639,  TT.  S.  Rev.  St.,  and  licnce  lliat  tlic  application 
was  in  time  'Yho  sarno  case  held  tlial  llie  right  given  l)y  that  sub- 
division to  jeniovc  the  cause,  on  the  ground  of  prejudice  or  local 


District  Courts  313 

influence,  had  not  been  taken  away  by  the  Act  of  March  3,  1875, 
To  the  same  effect,  Whitehouse  v.  Ins.  Co.,  supra. 

These  cases  in  whieli  the  petition  was  filed  before  any  trial  had 
been  had  have  no  api)lication  to  this  case,  where  two  trials  had 
already  been  had  before  the  petition  was  filed.  "Hearing  applies 
to  suits  in  chancery,  and  trials  to  action  at  law."  Vannevar  v. 
Bryant,  21  WjiII.  43.  The  words,  "at  any  time  before  the  trial  or 
final  hearing  of  the  suit,"  simply  mean,  "before  the  trial"  in  an 
action  at  law,  and  before  the  "final  hearing"  in  a  suit  in  equity. 
The  words  "final  hearing,"  refer  to  the  hearing  in  equity  upon 
the  merits  of  the  cause,  in  contradistinction  to  a  hearing  upon  a 
matter  merely  preliminary  or  interlocutory.  Had  it  been  the  inten- 
tion of  Congress  to  qualify  the  word  "trial"  by  the  word  "final," 
as  in  the  Act  of  1867,  they  would  have  used  the  language  of  that 
Act  in  the  Eevision,  instead  of  the  language  employed  in  the  Act  of 
1866,  or  else  they  would  have  preceded  the  word  "trial"  by  word 
"final."  Having,  to  use  a  word  employed  by  Mr.  Justice  Swayne 
in  Ins.  Co.  v.  Dunn,  supra,  "deliberately"  taken  the  word  "final" 
from  its  place  before  the  disjunctive,  and  placed  it  after  the  dis- 
junctive, we  must  agree  with  him  that  it  was  just  as  "material"  as 
the  former  change  the  other  way. 

We  are  not  cited  to  any  case  where  the  precise  point  has  been 
decided  by  the  Supreme  Court  of  the  United  States,  and  we  find 
none.  We  fully  agree  with  Judge  Dyer,  that  the  change  in  the 
sections  referred  to  was  clearly  intended  to  abridge  the  time  within 
which  suits  could  be  removed  from  the  State  to  the  Federal  Court. 
Phoenix  Ins.  Co.  v.  Walrath,  16  Fed.  Kep.  163.  That  case  was 
commenced  after  the  Act  of  1875,  and  hence  the  learned  judge 
said:  "The  statutory  requirement  is  imperative  that  the  removal 
must  be  made  before  there  is  any  trial  of  the  suit  in  the  State 
Court."  To  the  same  effect  was  the  opinion  of  Judge  Blatchpord 
in  Hendecker  v.  Rosenbaum,  6  Fed.  Rep.  97.  See  King  v.  Cornell, 
supra.  There  are  doubtless  cases  where  removals  have  been  made 
after  one  or  more  trials,  but  we  think  it  will  be  found  on  examina- 
tion that  they  were  cases  in  which  such  trials  were  had  prior  to 
the  passage  of  the  Act  of  1875,  and  hence  were  specially  provided 
for  therein.  In  the  absence  of  any  adjudication  upon  the  precise 
question  by  the  Supreme  Court  of  the  United  States,  we  must 
hold  upon  reason,  as  well  as  authorities  cited,  that  the  words  "at 
any  time  before  the  trial,"  found  in  subdivision  3,  §  639,  U.  S. 
Rev.  St.  mean  before  any  trial  of  the  cause  in  the  State  Court. 
It  is  on  this  ground,  as  we  understand,  that  the  learned  judge 


314  Cases  on  Federal  Procedure 

of  the  Western  District  of  Wisconsin  remanded  this  cause  to  the 

State  Court. 

The  order  of  the  Circuit  Cour+  is  affirmed.^ 


COMMONWEALTH  OF  VIRGINIA  v.  BINGHAM. 
Circuit  Court,  W.  D.  Virginia.     1898, 
88  Fed.  561. 

Paul,  District  Judge. — This  case  was  removed  from  a  court  held 
hy  a  justice  of  the  peace  of  Franklin  County,  Va.,  into  this  court, 
on  the  petition  of  the  defendants.  The  petition  was  filed  under 
the  provisions  of  section  643  of  the  Revised  Statutes  of  the  United 
States,  which  provides  as  follows: 

"Sec.  643,  When  anj'  civil  suit  or  criminal  prosecution  is  com- 
menced in  any  court  of  a  State  against  any  officer  appointed  under 
or  acting  by  authority  of  any  revenue  law  of  the  United  States 
now  or  hereafter  enacted,  or  against  any  person  acting  under  or 
by  authority  of  any  such  officer,  on  account  of  any  act  done  under 
color  of  his  office  or  any  such  law,  or  on  account  of  any  right,  title, 
or  authority  claimed  by  such  officer  or  other  person  under  such 
law,  *  *  *  tiig  sai(j  suif  or  prosecution  may,  at  any  time  be- 
fore the  trial  or  final  hearing  thereof,  be  removed  for  trial  into 
the  Circuit  Court  next  to  be  holden  in  the  district  where  the  same 
is  pending,  upon  the  petition  of  such  defendant  to  said  Circuit 
Court,  and  in  the  following  manner.  Said  petition  shall  set  forth 
the  nature  of  the  suit  or  prosecution,  and  be  verified  by  affidavit; 
and,  together  with  a  certificate  signed  by  an  attorney  or  counsellor 
at  law  of  some  court  of  record  of  the  State  where  such  suit  or 
prosecution  is  commenced,  or  of  the  United  States,  stating  that, 
as  counsel  for  the  petitioner,  he  has  examined  the  proceedings 
against  him,  and  carefully  enquired  into  all  the  matters  set  forth 
in  tlie  petition,  and  that  he  believes  them  to  be  true,  shall  be  pre- 
sented to  the  said  Circuit  Court,  if  in  session,  or,  if  it  be  not,  to 
the  clerk  tlicreof  at  his  office,  and  shall  be  filed  in  said  office.    The 

1  Only  a  jxirtion  of  tho  opinion  is  reprinted. 

The  .statute  dealt  with  was  not  similar  to  soetion  .Tl  in  many  ways,  but  the 
time  within  which  a  removal  eould  he  had  was  the  same  as  under  section  31. 

(-'omjmre  Field  v.  Williams,  L'l  Fed.  513  (1885)  and  Brayley  v.  Hedges, 
.';:'.   Iowa  . '582,  . '■.83  .184   (1880).— Ed. 


District  Courts  315 

cause  shall  thereupon  be  entered  upon  the  docket  of  the  Circuit 
Court  and  shall  proceed  as  a  cause  originally  commenced  in  that 
court;  but  all  bail  and  other  security  given  upon  such  suit  or 
prosecution  shall  continue  in  like  force  and  effect  as  if  the  same 
had  proceeded  to  final  judgment  and  execution  in  the  State  Court. 
When  the  suit  is  commenced  in  the  State  Court  by  summons, 
subpoena,  petition,  or  any  other  process  except  capias,  the  clerk 
of  the  Circuit  Court  shall  issue  a  writ  of  certiorari  to  the  State 
Court  requiring  it  to  send  to  the  Circuit  Court  the  record  and  pro- 
ceedings in  the  cause.  When  it  is  commenced  by  capias,  or  by  any 
other  similar  form  of  proceeding  by  which  a  personal  arrest  is 
ordered,  he  shall  issue  a  writ  of  habeas  corpiis  cum  causa,  a  dupli- 
cate of  which  shall  be  delivered  to  the  clerk  of  the  State  Court, 
or  left  at  his  office,  by  the  marshal  of  the  district,  or  his  deputy, 
or  by  some  person  duly  authorized  thereto;  and  thereupon  it  shall 
be  the  duty  of  the  State  Court  to  stay  all  further  proceedings  in 
the  cause,  and  the  suit  or  prosecution,  upon  delivery  of  such 
process,  or  leaving  the  same  as  aforesaid,  shall  be  held  to  be  re- 
moved to  the  Circuit  Court,  and  any  further  proceedings,  trial, 
or  judgment  therein  in  the  State  Court  shall  be  void.     *     *     *     " 

The  petition  for  removal  alleges,  in  substance,  that  one  Thomas 
Felts  was  an  officer  of  the  United  States,  to  wit,  a  deputy  collector 
of  internal  revenue  in  the  Sixth  District  of  Virginia ;  that  peti- 
tioners were  acting  as  part  of  a  posse  under  the  control  of  the  said 
Felts ;  and  that,  while  said  Felts  was  in  the  actual  discharge  of 
his  official  duties,  he  and  the  petitioners  were  attacked  and  fired 
upon  from  ambush  by  persons  supposed  to  be  in  sympathy  with, 
and  Avho  were  defending  violators  of  the  internal  revenue  laws ; 
that  petitioners  returned  the  fire  in  self-defense;  that,  during  the 
firing,  the  petitioner  Fitzwater  was  wounded,  and  the  horses  of 
petitioners  were  shot  several  times ;  that  during  the  firing  several 
hundred  shots  were  exchanged ;  that  there  were  some  cattle  in  the 
vicinity  of  the  firing;  and  that,  while  petitioners  have  no  knowl- 
edge that  any  injury  was  done  to  said  cattle  by  the  promiscuous 
firing  which  took  place,  "one  E.  D.  Allen  has  made  complaint  and 
information  on  oath  before  Samuel  Via,  a  justice  of  the  peace  of 
Franklin  County,  Virginia,  charging  them  with  cruelty  to  ani- 
mals, under  the  statute  of  Virginia,  and  further  charging  that  said 
cattle  had  been  shot  by  petitioners,  and  have  died." 

Following  is  the  warrant  issued  by  said  Samuel  Via,  justice  of 
the  peace  of  Franklin  County,  Va.,  on  said  complaint  and  informa- 
tion, on  oath  of  said  R.  D.  Allen : 


316  Cases  on  Federal  Procedure 

' '  Commonwealth  of  Virginia,  Franklin  County,  to  wit : 

"  To  6.  C.  MeAlexander,  Constable  of  said  County : 

"Whereas,  R,  D.  Allen,  of  said  county,  has  this  day  made  com- 
plaint and  information  on  oath  before  me,  Samuel  Via,  a  justice 
of  the  peace  of  said  county,  that  Thomas  Bingham  and  Geo.  S. 
Fitzwater,  on  the  18th  day  of  July,  1896,  in  the  said  county,  did 
unlawfully,  but  not  feloniously,  injure,  maim,  and  disfigure  two 
cows,  by  shooting  and  killing  of  them,  the  property  of  the  said 
R.  D.  Allen,  against  the  peace  and  dignity  of  the  commonwealth 
of  Virigina :  These  are,  therefore,  in  the  name  of  the  common- 
wealth, to  command  you  forthwith  to  apprehend  and  bring  before 
me,  or  some  other  justice  of  the  said  county,  the  bodies  of  the 
said  Thomas  Bingham  and  Geo,  S.  Fitzwater,  to  answer  the  said 
complaint,  and  to  be  further  dealt  with  according  to  law. 

''Given  under  my  hand  and  seal,  this  the  18th  day  of  July, 
1896. 

"Samuel  Via,  J.  P." 

The  petitioners  further  allege  that  they  have  been  arrested  under 
the  said  warrant,  and  are  held  under  bail,  to  answer  the  same 
before  a  justice  of  the  peace  of  said  Franklin  County.  They 
further  allege  that  the  prosecution  aforesaid  against  them  was 
liegun  for  an  act  done  while  they  were  under  the  command  of  said 
Felts,  who  was  acting  under  color  of  his  office  of  deputy  collector, 
and  they  pray  that  the  prosecution  against  them  may  be  removed 
into  this  court.  On  the  filing  of  this  petition  with  the  clerk  of 
the  Circuit  Court,  the  clerk  issued  a  writ  of  habeas  corpus  cum 
causa,  directed  to  the  justice  of  the  peace  who  had  issued  the  war- 
rant of  arrest  for  the  petitionei'Ts;  and  the  justice,  in  obedience 
to  said  writ,  stopped  all  further  proceedings  in  the  case,  and  for- 
warded the  original  papers  in  the  case  to  the  clerk  of  this  court, 
and  the  case  was  docketed  here.  The  commonwealth  of  Virginia 
moves  to  remand  the  case  to  the  justice  of  Franklin  County,  Va., 
before  whom  it  was  pending  when  the  petition  was  filed,  on  the 
following  grounds : 

First.  That  section  643  of  iho  Revised  Statutes  of  the  United 
Staffs,  providing  for  tlie  removal  of  pi-osecutions  from  a  State 
Conrl  into  the  Circuit  ('onrt  of  the  Tnited  States,  contemplates 
only  prosecutions  pending  in  a  court  of  i-ecord ;  that  this  is  shown 
l)y  the   following  i)rovisions  of  the  statute: 

"Whrn  the  suit  is  commenced  in  the  State  Court  by  summons, 
faubpoena,  petition,  or  any  other  process  except  capias,  the  clerk 


District  Courts  317 

of  the  Circuit  Court  shall  issue  a  writ  of  certiorari  to  the  State 
Court  requiring  it  to  send  to  the  Circuit  Court  the  record  and 
proceedings  in  the  cause.  When  it  is  commenced  by  capias,  or 
by  any  other  similar  form  of  proceeding  by  which  a  personal  arrest 
is  ordered,  he  shall  issue  a  writ  of  habeas  corpus  cum  causa,  a 
duplicate  of  which  shall  be  delivered  to  the  clerk  of  the  State 
Court,  or  left  at  his  office,  by  the  marshal  of  the  district,  or  his 
deputy,  or  by  some  person  duly  authorized  thereto ;  and  thereupon 
it  shall  be  the  duty  of  the  State  Court  to  stay  all  further  pro- 
ceedings in  the  cause,  and  the  suit  or  prosecution,  upon  delivery 
of  such  process,  or  leaving  the  same  as  aforesaid,  shall  be  held 
to  be  removed  to  the  Circuit  Court,  and  any  further  proceedings, 
trial,  or  judgment  therein  in  the  State  Court  shall  be  void." 

It  is  insisted  that,  as  a  court  held  by  a  justice  of  the  peace  in 
Virginia  has  no  clerk,  and  is  not  a  court  of  record,  a  prosecution 
such  as  this,  which  is  a  misdemeanor  under  the  laws  of  Virginia, 
cannot  be  removed  into  this  court.  It  is  also  urged  that  a  pro- 
ceeding is  not  "commenced,"  as  the  statute  (section  643)  con- 
templates, until  an  indictment  has  been  found  by  a  grand  jury  in 
the  State  Court.  It  is  urged  that  not  only  was  there  no  indict- 
ment found  in  the  State  Court  at  the  time  of  the  filing  of  the 
petition  in  this  case,  but  that  no  indictment  could  be  found  in  the 
courts  of  the  State  of  Virginia  on  a  charge  such  as  is  made  by 
the  warrant  issued  by  the  justice  of  the  peace. 

The  act  of  the  Legislature  of  Virginia,  abolishing  indictment 
by  a  grand  jury  in  cases  of  misdemeanor,  such  as  is  charged  in  this 
case,  provides  that : 

"The  several  police  justices  and  justices  of  the  peace,  in  addi- 
tion to  the  jurisdiction  exercised  by  them  as  conservators  of  the 
peace,  shall  have  exclusive  original  jurisdiction  of  all  misdemeanor 
cases  occurring  within  their  jurisdiction,  in  all  of  which  cases  the 
punishment  may  be  the  same  as  the  county  or  corporation  courts 
are  authorized  to  impose.     *     *     *" 

Prior  to  the  passage  of  this  act,  misdemeanors  (to  which  class 
of  offenses  the  offense  in  the  warrant  issued  by  the  justice  in  this 
ease  belongs)  were  indictable  by  a  grand  jury.  The  statute  quoted 
changed  the  law  of  Virginia  in  this  respect,  and  now  it  is  not 
required  that  an  offense  of  the  grade  here  charged  shall  be  sub- 
mitted to  a  grand  jurj^  for  investigation  as  the  basis  of  a  prosecu- 
tion and  trial  by  a  jurj-.  If  the  position  of  the  counsel  for  the 
commonwealth  of  Virginia  be  correct,  then  the  provisions  of  sec- 
tion 643  of  the  Revised  Statutes  of  the  United  States  relative  to 


318  Cases  on  Federal  Procedure 

the  removal  of  prosecutions  from  a  State  Court  into  a  Federal 
Court  are  in  great  part  rendered  of  no  effect  by  the  Virginia 
Statute.  If  this  contention  be  sound,  no  officer  appointed  under 
or  acting  by  the  authority  of  any  revenue  law  of  the  United 
States  against  whom  a  prosecution  has  been  commenced  in  a  State 
Court  of  Virginia  is  entitled  to  the  protection  contemplated  by 
the  United  States  statute,  unless  he  shall  have  first  been  indicted 
by  a  grand  jurj'  in  a  court  of  record  in  that  State.  Under  this 
view  of  the  law,  a  court  held  bj^  a  justice  of  the  peace  in  Virginia 
not  being  a  court  of  record  (4  Minor,  Inst.  160),  not  having  the 
machinery  of  a  grand  jury  with  which  to  commence  a  prosecu- 
tion, no  removal  of  a  prosecution  pending  therein  can  be  had,  under 
the  provisions  of  section  643  of  the  Revised  Statutes  of  the  United 
States.  To  give  the  statute  the  construction  here  contended  for 
would  be  to  admit  that  the  State  of  Virginia  can,  by  an  act  of  its 
Legislature,  practically  repeal  it  as  to  this  State  by  simply  en- 
larging the  jurisdiction  of  a  court  not  of  record,  and  by  abolishing 
the  action  of  a  grand  jury  in  all  criminal  cases,  and  substituting 
therefor  some  other  mode  of  commencing  a  prosecution. 

In  support  of  the  position  taken  b}^  counsel  that  a  criminal  case 
arising  under  section  643  cannot  be  removed  into  this  court  where 
no  indictment  has  been  found  in  the  State  Court,  the  case  of  Vir- 
ginia V.  Paul,  148  I).  S.  107,  13  Sup.  Ct.  536,  is  cited  as  a  decisive 
authority.  That  was  a  case  where  a  deputy  marshal  had  been 
arrested  on  a  warrant  issued  by  a  justice  of  the  peace  charging 
him  with  murder,  and  he  was  held  in  custody  awaiting  an  investi- 
gation before  the  justice  who  issued  the  warrant.  On  petition  of 
the  prisoner,  the  case  was  removed  into  the  Circuit  Court  before 
an  indictment  had  been  found  in  the  State  Court.  The  Supreme 
Court  held  (syllabus)  : 

"A  prosecution  of  a -crime  against  the  laws  of  a  State,  which 
must  be  prosecuted  by  indictment,  is  not  commenced,  within  the 
meaning  of  section  643  of  the  Revised  Statutes,  before  an  indict- 
ment is  found,  and  cannot  be  I'cmoved  into  the  Circuit  Court  of 
the  United  States  by  a  person  ai-rested  on  a  warrant  from  a  justice 
of  tlie  peace,  with  a  view  to  his  commitment  to  await  the  action 
of  tlie  grand  jury." 

The  case  at  bar  not  being  a  ci-ime  against  the  laws  of  the  State 
of  Virginia  which  must  be  prosecuted  by  indictment,  tlic  holding 
of  the  Supreme  Court  in  that  case  is  not  apjilicable  to  this.  While 
the  language  of  the  statute  (section  C>\',])  contemplates  that  the 
prosecution  will  he  commenced  in  a  Slate  Court  of  record,  to  give 


District  Courts  319 

it  that  construction  would  render  abortive  the  effort  of  Congress 
to  accomplish  the  manifest  purpose  of  the  statute.  The  law  of 
Congress  is  constitutional,  its  object  is  clear,  and  the  intention 
of  the  lawmaking  power  unmistakable.  In  such  case,  the  law,  if 
possible,  must  be  so  construed  as  to  give  effect  to  the  purpose  of 
its  enactment.  The  object  of  the  law  is  to  protect  the  officers  of 
the  United  States  Government  in  the  collection  of  the  internal 
revenues,  and  in  the  enforcement  of  the  internal  revenue  laws, 
against  unjust  and  prejudicial  prosecutions  in  the  State  courts ; 
and  whether  the  prosecution  is  commenced  by  indictment  in  a 
court  of  record,  or  by  the  issuance  of  a  warrant  of  arrest  on  which 
the  officer  is  to  be  tried  by  a  justice  of  the  peace,  he  is  entitled 
to  the  protection  secured  him  by  this  law.  When  the  petition 
for  removal  in  this  case  was  filed  with  the  clerk,  he  pursued  the 
proper  course  in  issuing  a  writ  of  habeas  corpus  cum  causa,  di- 
rected to  the  justice  of  the  peace  before  whom  the  prosecution 
was  pending.  The  case  is  properly  in  this  court,  and  the  motion 
to  remand  will  be  overruled.^ 


COMMONWEALTH  OF  VIRGINIA  v.  DeHART. 

Cirauit  Court,  W.  D.  Virginia.     1902. 

119  Fed.  626. 

McDowell,  District  Judge. — The  point  for  decision  in  this  case 
arises  on  a  motion  by  the  State  to  remand  this  cause  to  the  State 
Court,  The  defendant  was  indicted  by  the  grand  jury  of  Floyd 
County  for  a  felonious  assault  on  one  N.  K.  Thomas.  On  an 
informal  petition,  subsequently  amended,  filed  under  section  643, 
Rev.  St.  U.  S.  (U.  S.  Comp.  St.  1901,  p.  521),  the  cause  was  re- 
moved to  this  court.  The  motion  to  remand  is  based  on  the  con- 
tention that  the  petition  as  amended  does  not  allege  the  state 
of  facts  necessary  to  give  this  court  jurisdiction.  So  far  as  now 
material,  the  amended  petition  alleges  that  a  short  time  prior  to 
the   alleged   assault  the  petitioner,  while   acting  as  a   posseman 

1  Compare  Virginia  v.  Paul,  148  U.  S.  107,  118-122,  13  S.  Ct.  536,  540- 
542,  37  L.  Ed.  386,  390-392  (1893).  But  see  State  of  Georgia  v.  Bolton,  11 
Fed.  217  (1882)  ;  State  of  North  Carolina  v.  Kirkpatriek,  42  Fed.  689,  690 
(1890).— Ed. 


320  Cases  on  Federal  Procedure 

under  a  deputy  collector  of  internal  revenue,  had  assisted  in  de- 
stroying an  illicit  distillery  belonging  to  the  aforesaid  N.  K.  Thom- 
as ;  that  he  appeared  as  a  witness,  and  had  testified  against  Thomas 
at  the  preliminary  hearing,  and  was  recognized  as  a  Government 
witness  to  appear  and  testify  against  Thomas  at  the  then  next 
term  of  the  Federal  Court.  At  this  juncture — between  the  ex- 
amining trial  and  the  term  of  court  at  which  Thomas  was  to  be 
tried  for  operating  an  illicit  distillery — the  petitioner  was  sum- 
moned by  a  deputy  United  States  marshal  to  assist  in  an  effort  to 
arrest  one  Agee  for  a  violation  of  the  Federal  revenue  laws, 
"While  in  the  discharge  of  such  duty,  and  while  acting  under 
and  by  authority  of  said  officer,  petitioner  was  set  upon  by  said 
N.  K.  Thomas,  who  told  your  petitioner  that,  on  account  of  his 
having  reported  said  Thomas'  still  to  the  Government  officers, 
and  on  account  of  his  having,  while  acting  under  and  by  authority 
of  a  deputy  collector  of  the  United  States,  assisted  in  the  cutting 
up  and  destruction  of  said  Thomas'  still,  and  on  account  of  the 
evidence  given  by  j^our  petitioner  against  him  before  the  commis- 
sioner, and  to  prevent  such  evidence  being  repeated  by  your  peti- 
tioner at  the  November  term  of  the  said  District  Court,  he  in- 
tended to  kill  your  petitioner.  And  as  he  said  this,  said  N.  K. 
Thomas  thrust  his  hand  in  his  pocket  and  drew  therefrom  a  pistol. 
Your  petitioner,  acting  in  the  capacity  of  a  Government  officer, 
also  had  on  his  person  a  pistol,  which  he  drew  from  his  pocket, 
and,  wathout  attempting  to  fire  on  the  said  N.  K.  Thomas,  struck 
him  in  self-defense,  and  thereby  prevented  the  said  N,  K,  Thomas 
from  carrying  out  the  threats  made  not  only  at  that  time,  but  on 
previous  occasions."  There  is  no  room  for  doubt  that  a  deputy 
marshal,  while  executing,  or  on  the  way  to  execute,  a  warrant  for 
the  arrest  of  one  charged  with  a  violation  of  an  internal  revenue 
statute  is  "an  officer  acting  by  authority  of  a  revenue  law."  Carico 
V.  Wilmore  (D.  C),  51  Fed.  196.  And  the  petitioner — as  he  was 
acting  under  such  an  officer — is  within  the  intent  and  letter  of 
the  statute  (Davis  v.  South  Carolina,  107  U.  S.  597,  2  Sup.  Ct. 
68G,  27  L.  Ed.  574),  if  the  prosecution  is  on  account  of  an  act 
done  under  color  of  office  or  of  any  revenue  law,  or  if  the  prose- 
cution is  on  account  of  any  right  or  authority  claimed  inider  any 
revenue  law.  Possibly  the  mere  fact  that  the  assault  made  by 
Thomas  on  the  jx'litioncr  grew  out  of  the  i)rior  actions  of  the 
petitioner  whih'  acting  under  the  dei)uty  revenue  collector  may 
huv(!  no  bearing  on  the  <|nesti()n  hei'c.  If,  years  after  a  revenue 
eollecloi-  has  left    the  (Joveiiiiiieiit    service,  he   is  attacked  because 


District  Courts  321 

of  some  act  done  by  him  while  in  the  service,  and  if,  in  repelling 
the  attack,  he  kills  the  one  who  assaults  him,  his  act  is  not  one 
done  under  color  of  office  or  of  any  revenue  law,  nor  is  it  an  act 
done  under  a  right  or  authority  claimed  under  any  revenue  law. 
The  only  right  that  could  be  claimed  in  such  case  would  be  the 
right  of  self-defense.  Again,  suppose  that  a  revenue  officer,  while 
holding  a  commission,  but  while  quietly  at  his  home,  and  while 
not  engaged  in  any  official  duty,  is  attacked  because  of  some  act 
previously  done  by  him  in  the  performance  of  his  official  duty, 
and  in  repelling  such  attack  he  kills  the  person  who  assaulted 
him,  and  is  indicted  therefor  in  the  State  Court.  It  would  seem 
that  the  act  of  killing  here  is  not  done  under  color  of  office  or 
of  any  revenue  law,  nor  under  a  right  properly  to  be  claimed 
under  any  revenue  law ;  but  that  the  officer  in  this  case  is  again 
merely  exercising  the  right  of  self-defense.  While  Congress  might 
well  have  extended  the  right  of  removal  to  cover  such  a  case,  the 
language  employed  in  section  643  may  not  be  quite  sufficient  to 
do  so.  Illinois  v.  Fletcher  (C.  C),  22  Fed.  778.  However,  the 
petition  here  sets  up  certain  other  facts  which  I  think  do  show 
a  prima  facie  right  to  a  trial  in  this  court.  These  facts  are  that, 
the  petitioner  having  been  duly  summoned  as  a  posseman  by  a 
revenue  officer,  who  was  "seeking  to  arrest"  an  offender  against 
the  revenue  law,  and  while  the  petitioner  was  "in  the  discharge 
of  such  duty"  he  was  set  upon  by  Thomas,  who  declared  his 
purpose  to  kill  petitioner,  and  the  latter  in  self-defense  struck 
said  Thomas.  If  a  revenue  official  (the  law  being  the  same  in  the 
case  of  one  acting  under  such  official  as  his  posseman),  while 
"hot-foot"  after  a  fleeing  violator  of  a  revenue  law,  is  set  upon 
by  friends  of  the  fugitive,  who  seek  thus  to  prevent  the  arrest, 
and  if,  in  resisting  the  assault,  the  officer  kills  one  of  the  party, 
his  act  in  so  doing  is  certainly  one  done  under  color  of  office,  or 
one  done  under  a  right  claimed  under  a  revenue  law.  '  *  Colorable ' ' 
is  defined  as  "having  the  appearance,  especially  the  false  appear- 
ance, of  right."  In  the  case  supposed  it  was  the  duty  of  the 
officer  to  arrest  the  fugitive.  To  execute  his  duty  he  had  to  repel 
the  assault,  or  to  abandon  his  pursuit.  The  killing,  then,  was,  to 
say  the  least,  done  colorably  in  the  line  of  official  duty.  Does  it 
alter  the  case  if  we  suppose  that  the  person  or  persons  who  inter- 
fere with  the  officer's  pursuit  are  actuated,  not  by  a  desire  to 
prevent  the  arrest,  but  b.y  a  mere  personal  desire  to  injure  the 
officer?  In  such  case,  if  the  assault  be  not  repelled,  the  officer 
cannot  proceed  with  the  execution  of  his  official   duty.      Conse- 

Wheaton  C.  F.  P.— 31 


322  Cases  on  Federal  Procedure 

quently  it  is  not  a  strained  construction  of  the  statute  to  hold  that 
when  an  attack  is  made  on  a  revenue  officer,  while  he  is  in  the 
actual  pursuit  of  a  violator  of  the  revenue  laws,  by  a  third  party 
actuated  by  mere  personal  malice  towards  the  officer,  and  the 
officer,  in  repelling  the  attack,  wounds  or  kills  the  person  attack- 
ing him,  such  act  is  one  done,  at  least  colorably,  in  the  line  of 
official  duty.  Nor  can  a  distinction  be  properly  drawn,  if,  instead 
of  being  in  actual  pursuit,  the  officer  is  merely  on  the  way  to  make 
an  arrest,  or  merely  seeking  an  offender  with  intent  to  arrest  hira 
when  found.  It  seems  to  me  that  it  is  as  much  the  officer's  right, 
even  if  not  as  much  his  duty,  to  proceed  on  his  way,  or  to  proceed 
with  his  search,  as  it  is  to  pursue  when  the  offender  is  in  sight 
and  is  fleeing.  If  interrupted  by  one  who  assaults  him — no  matter 
what  cause  actuates  the  person  making  the  assault — the  officer 
has  as  much  right  to  repel  the  assault  in  the  one  case  as  in  the 
other.  To  be  sure,  the  same  necessity  for  immediate  action  may 
not  exist  in  both  cases.  It  is  true  that,  when  the  officer  is  merely 
traveling  on  the  way  to  make  an  arrest,  he  could,  perhaps,  by 
a  timely  retreat,  avoid  the  necessity  of  injuring  the  one  attacking 
him.  But  this  might  also  be  true  if  he  were  attacked  while  in 
hot  pursuit  of  a  fleeing  criminal.  And  in  either  case  his  act  in 
repelling  the  assault  is  at  least  colorably  done  in  the  exercise  of 
his  official  duty ;  for  in  either  case  it  is  his  official  duty  to  pro- 
ceed, whether  with  the  actual  pursuit  of  a  fugitive,  or  with  his 
journey,  or  his  search  for  an  offender.  Any  one  who,  while  the 
officer  is  thus  engaged,  attacks  him,  is,  in  some  measure,  inter- 
fering with  the  performance  of  an  official  duty.  And  in  repelling 
the  attack  the  officer  is  at  least  colora])ly  performing  such  duty. 
The  mere  fact  that  the  officer's  chief  thought  or  sole  thought  is 
self-defense  does  not  eliminate  from  the  case  the  fact  that  in  re- 
pelling the  assault  he  is,  at  least  colorably,  proceeding  with  his 
official  duty.  And  I  am  not  disposed  to  emasculate  the  statute 
by  such  refinements  as  making  the  right  of  removal  depend  on 
whether  the  thought  uppermost  in  the  officer's  mind  was  self- 
defense,  or  an  intent  to  proceed  with  tiie  execution  of  his  duty — 
necessarily  putting  his  assailant  hors  de  conihot,  in  order  that  he 
niiglit  be  at  liberty  to  so  proceed.  The  intent  of  section  643,  Rev. 
St.  (IJ.  S.  Comp.  8t.  1901,  p.  521),  is  to  afford  to  revenue  officials 
and  their  assistants  protection  from  local  prejudice  against  Fed- 
eral revenue  laws  and  revenue  officials.  The  language  of  the  stat- 
ute does  not  authori/c  a  removal  of  cvory  prosecution  against  a 
revenue  officer;  but   the  words  "under  color  of"  and  "right  or 


District  Courts  323 

authority  claimed"  show  clearly  that  the  act  for  which  the  prose- 
cution is  commenced  need  not  be  one  done  strictly  in  pursuance 
of  a  Federal  revenue  statute  in  order  to  justify  removal.  If,  for 
instance,  a  revenue  officer,  while  not  even  colorably  engaged  in  the 
performance  of  duty,  sets  fire  to  a  neighbor's  dwelling,  he  should 
be  tried  for  his  arson  by  the  State  Court.  But  if,  while  seeking 
to  arrest  a  violator  of  a  revenue  law,  who  is  fortified  in  his  dwell- 
ing, the  officer — even  without  sufficient  justification — sets  fire  to 
the  house  in  order  to  effect  the  capture,  the  trial  of  the  charge 
of  arson  made  against  him  should  be  removed  to  the  Federal 
Court. 

The  conclusion  I  reach  is  that  the  petition  here  shows  on  its 
face  a  right  of  removal.    The  motion  to  remand  is  overruled.^ 


STATE  v.  SULLIVAN. 

Circuit  Court,  W.  D.  North  Carolina.     1892. 

50  Fed.  593. 

At  Law. — A  motion  to  proceed  with  the  trial  of  this  case,  re- 
moved from  the  State  Court,  the  State  Court  having  declined  to 
recognize  the  right  of  removal,  and  tried  the  case. 

Dick,  District  Judge. — Many  State  and  Federal  courts  of  the 
highest  authority  have  heard  argument  and  carefully  considered 
questions  of  law  arising  under  section  643  of  the  Revised  Statutes 
of  the  United  States,^  and  in  able,  elaborate,  and  positive  decisions 
declared  its   constitutionality,   and  forcibly  announced  the   wise 

and  just  principles  of  public  policy  upon  which  it  is  founded. 

*     *     * 

Upon  careful  examination  of  the  proceedings  instituted  for  the 
removal  of  this  case  from  the  State  Court  to  this  court  for  trial, 

1  For  further  cases  dealing  with  the  question  as  to  when  one  is  an  "offi- 
cer appointed  under  or  acting  by  authority  of  any  revenue  law"  etc.,  see 
Van  Zandt  v.  Maxwell,  28  Fed.  Gas.  No.  16,884,  2  Blatchford  421  (1852)  ; 
Carico  v.  Wilmore,  51  Fed.  196  (1892);  Davis  v.  South  Carolina,  107  U. 
S.  597,  2  S.  Ct.  636,  27  L.  Ed.  574  (1882).  But  see  Benchley  v.  Gilbert,  3 
Fed.  Gas.  No.  1,291,  p.  158,  8  Blatchford  147  (1871)  ;  Victor  v.  Cisco,  28 
Fed.    Gas.   No.    16,   934,   p.    1177,   5   Blatchford    128    (1862).— Ed. 

2  The  statute  involved  in  this  case  was,  in  most  respects,  similar  to  section 
33   of  the   Judicial  Code.— Ed. 


324  Cases  on  Federal  Procedure 

I  find  that  they  are  in  substantial  conformity  to  the  act  of  Con- 
gress. The  petition  of  the  defendants  represented  that  they  were 
officers  and  agents  of  the  Government,  duly  appointed  and  acting 
under  the  revenue  laws  of  the  United  States,  and  that  the  acts 
for  doing  which  they  are  criminally  prosecuted  in  the  State  Court 
were  acts  done  under  color  of  their  office  and  emploj'ment,  and 
in  the  performance  of  their  official  duties,  in  the  enforcement  of 
said  revenue  laws.  The  representations  set  forth  in  their  petition, 
showing  the  nature  of  the  prosecution  and  the  authority  and  the 
circumstances  under  which  they  acted,  were  duly  verified  by  oath, 
and  by  the  certificate  required  by  law  to  be  given  by  the  legal 
counsel  of  the  petitioners.  As  the  Circuit  Court  was  not  in  reg- 
ular session,  the  petition  was  presented  to  the  deputy  clerk  of 
such  court  at  his  office  in  Statesville,  and  was  duly  filed  in  said 
office,  and  the  case  was  thereupon  entered  on  the  docket  of  the 
Circuit  Court,  to  be  proceeded  with  as  a  case  originally  com- 
menced in  said  court,  and  a  writ  of  certiorari  was  duly  signed 
and  issued  by  a  regularly  appointed  and  qualified  deputy  clerk, 
acting  in  the  name  of  the  clerk  of  the  court.  This  writ  was  placed 
in  the  hands  of  the  marshal  of  this  district,  and  a  duplicate  copy 
was  delivered  by  him  to  the  clerk  of  the  State  Court  before  the 
commencement  of  the  trial  of  the  case  in  said  court.  As  the  de- 
fendants Avere  on  bail,  and  not  in  actual  custody,  a  writ  of  habeas 
corpus  cum  causa  was  not  applied  for  in  the  petition,  and  was 
not  issued  by  the  deputy  clerk.  The  recognizance  in  the  State 
Court  was  transferred  by  operation  of  law  in  the  removal  of  the 
case,  and  the  defendants  were  under  obligation  to  appear  in  this 
court  and  answer  the  charges  in  the  indictment  found  by  the  grand 
jury  of  the  State  Court. 

I  entertain  the  opinion  that  when  proceedings  for  the  removal 
of  a  criminal  prosecution  from  a  State  Court  to  a  Federal  Court 
for  trial  arc  in  conformity  to  the  act  of  Congress  providing  for 
such  removal,  the  representations  averred  in  the  petition  of  de- 
fondants,  constituting  sufficient  grounds  for  removal,  verified  by 
oath  and  by  certificate  of  counsel,  must  be  accepted  as  true,  and 
the  case  is  ipso  facto  removed  to  the  Circuit  Court,  and  the  ju- 
risdiction of  the  State  Court  is  at  an  end,  unless  the  case  shall 
be  remanded  thereto.  Spear,  Fed.  Jud.  484.  The  riglits  of  the 
defendants  and  the  jurisdiction  of  tlie  Circuit  Court  depend  upon 
the  aniliority  of  law,  and  not  upon  the  correct  performance  of 
a  ministerial  diity  by  the  clerk  of  the  court.  The  act  of  Congress 
does  not  invest  the  clerk  with  an.\-  judicial   finiction  or  discretion, 


District  Courts  32") 

but  commands  him  to  issue  the  prescribed  auxiliary  remedial  proc- 
ess to  prepare  the  case  for  trial.  No  duly  authenticated  record 
of  the  State  Court  has  been  returned  by  the  clerk,  in  obedience  to 
the  writ  of  certiorari,  but  I  am  informed  that  no  objection  was 
made  in  the  State  Court  as  to  the  regularity  and  sufficiency  of 
the  proceedings  for  removal  up  to  the  time  of  filing  the  petition 
in  the  office  of  the  clerk  of  this  court,  and  the  entering  of  the 
cause  upon  the  docket.  The  refusal  of  the  court  to  recognize  the 
right  of  removal  was  founded  upon  the  fact  that  the  writ  of 
certiorari  was  not  personally  issued  by  the  clerk;  and  the  court 
was  of  opinion  that  such  writ,  signed  and  issued  by  the  deputy 
clerk  in  the  name  of  the  clerk,  was  irregular,  erroneous,  and  void. 
The  act  of  Congress,  in  express  terms,  prescribed  the  nature  of 
the  representations  that  must  appear  in  the  petition,  the  method 
of  verification,  and  the  manner  of  filing  the  same.  When  these 
requisites  are  complied  with,  the  proceeding  at  once  has  the  opera- 
tive force  and  effect  of  removing  the  case,  as  the  statute  positively 
declares  that  "the  cause  shall  thereupon  be  entered  on  the  docket 
of  the  Circuit  Court,  and  shall  proceed  as  a  cause  originally  com- 
menced in  that  court."  This  clause,  so  clear  and  imperative  in 
its  terms,  must,  under  a  reasonable  construction,  have  the  force 
and  effect  of  conferring  paramount  jurisdiction  on  the  Circuit 
Court,  and  full  power  to  proceed,  at  once,  to  have  the  cause  pre- 
pared for  trial.  This  jurisdiction  is  as  complete  and  plenary  as 
if  the  cause  had  been  originally  commenced  in  the  court.  As  this 
court  had  rightfully  acquired  jurisdiction  under  a  paramount 
constitutional  law  of  the  United  States,  the'  State  Court  was  di- 
vested of  its  former  jurisdiction  and  could  not  legally  proceed  to 
try  the  cause.  The  writ  of  certiorari  mentioned  in  section  643 
is  an  auxiliary  writ  of  the  court,  issued  by  its  ministerial  officer, 
the  clerk,  or  the  regularly  appointed  and  qualified  deputy  clerk,  in 
order  that  the  removed  cause  may  be  tried  as  fairly  and  speedily 
as  possible.  The  purpose  of  issuing  such  writ  is  to  procure  the 
record  of  the  State  Court,  so  that  the  Circuit  Court  may  proceed 
with  the  case  where  the  jurisdiction  of  the  State  Court  ceased. 
This  writ  was  also  intended  to  give  the  State  Court  notice  of  the 
removal  of  the  cause  so  that  it  might  have  an  opportunity  of  com- 
plying with  a  dutj^  expressly  imposed  by  a  paramount  law  of  the 
Federal  Government.  The  subsequent  clause  in  the  statute,  de- 
claring that  "the  suit  or  prosecution  upon  the  delivery  of  such 
process,  or  leaving  the  same  as  aforesaid,  shall  be  held  to  be  re- 
moved to  the  Circuit  Court,  and  any  further  proceedings,  trial. 


C26  Cases  on  Federal  Procedure 

or  judgment  therein  in  the  State  Court  shall  be  void,"  was  in- 
tended as  a  positive  inhibition  of  any  further  proceeding  in  the 
State  Court,  and  to  authorize  the  Circuit  Court  to  proceed  in  the 
manner  provided.  Conceding  for  a  moment  that  the  objection  to 
the  ministerial  process  of  this  court  has  some  legal  foundation, 
it  is  merely  technical,  and  does  not  affect  the  merits  of  the  case. 
As  the  process  issued  from  a  court  having  rightful  and  competent 
jurisdiction  of  the  case,  it  was  not  void,  and  could  only  be  irreg- 
ular or  erroneous.  Even  if  it  was  irregular  or  erroneous,  it  gave 
full  and  explicit  notice  of  the  assumed  jurisdiction  of  the  court, 
and  of  the  rights  claimed  by  the  defendants  under  the  Constitu- 
tion and  laws  of  the  United  States,  as  well  defined  and  established 
by  decisions  of  our  State  Supreme  Court  and  the  Supreme  Court 
of  the  United  States.  State  v.  Hoskins,  77  N.  C.  530;  Tennessee 
V.  Davis,  100  U.  S.  257 ;  Davis  v.  South  Carolina,  107  U.  S.  597, 
2  Sup.  Ct.  Rep.  636.  Under  such  circumstances  it  seems  to  me 
that  the  State  Court  could,  as  a  matter  of  comity  and  common 
justice,  have  given  the  defendants  a  reasonable  opportunity  of 
having  a  mere  irregularitj^  of  proceeding  corrected,  and  thus  ad- 
minister substantial  justice,  and  avoid  any  occasion  for  conflict  of 
jurisdiction  between  a  State  and  Federal  Court  exercising  juris- 
diction in  the  same  territorial  limits.  Judicial  controversies  are 
always  unpleasant  and  unseemly,  and  should  be  avoided,  unless 
such  conflicts  are  necessary  to  a  proper  enforcement  of  the  law, — • 
to  secure  the  legal  rights  of  citizens,  the  right  of  the  Government, 
and  the  impartial  administration  of  justice.  The  defendants,  by 
making  the  best  defense  they  could  in  the  State  Court,  neither 
lost  nor  impaired  in  the  least  degree  their  right  of  trial  in  this 
court,  which  was  claimed  by  them  in  the  manner  provided  by  law. 
Steamship  Co.  v.  Tugman,  106  U.  S.  118,  1  Sup.  Ct.  Rep.  58. 

I  will  now  proceed  to  consider  more  particularly  the  nature 
of  the  writ  of  certiorari,  issued  by  the  deputy  clerk  of  this  court 
in  the  name  of  the  clerk,  to  ascertain  whether  the  action  of  the 
deputy  was  in  accordance  with  official  duty  and  power.  At  com- 
mon law  the  writ  of  certiorari  is  used  for  two  purposes:  (1)  As 
an  appellate  proceeding  for  re-oxamination  of  some  action  of  an 
inferior  tribunal;  and  (2)  as  auxiliary  process  to  enable  a  court 
to  obtain  further  information  upon  some  matter  already  before 
it  for  adjudication.  U.  S.  v.  Young,  94  U.  S.  258.  It  was  for 
this  last  purpose  that  the  writ  was  issued  in  this  case.  In  its 
relations  to  ihis  court  the  State  Court  is  in  no  sense  of  the  word 
an  inferior  court.     The  pi-occcdiiigs  in  this  case  are  appellate  in 


II 


District  Courts  327 

their  nature.  They  were  instituted  under  a  positive  and  consti- 
tutional law,  which  entitled  the  defendants,  upon  making  a  certain 
representation  of  facts,  in  a  properly  verified  petition,  to  have  a 
case  untried  and  pending  in  a  State  Court  having  jurisdiction 
removed  for  trial  to  a  Federal  Court  which  had  in  accordance 
with  law,  acquired,  not  concurrent,  but  paramount,  jurisdiction. 
A  court  must  have  competent  jurisdiction  of  a  matter  before  it 
can  award  a  writ  of  certiorari.  When  a  valid  law  confers  upon 
a  court  jurisdiction  to  issue  a  writ  of  certiorari,  such  jurisdiction 
must  necessarily  be  superior  to  the  jurisdiction  to  which  the  writ 
is  directed ;  for  such  writ  commands  the  performance  of  a  duty. 
Such  superior  jurisdiction  is  derived  from  positive  law,  and  is 
in  no  way  dependent  upon  the  formal  correctness  of  the  writ 
which  the  court  issues  in  order  that  it  may  exercise  its  vested 
jurisdiction  with  intelligence  and  dispatch.  When  this  case  was 
properly  entered  upon  the  docket  of  this  court,  jurisdiction  to 
issue  the  writ  of  certiorari  and  try  the  case  was  conferred  by  the 
act  of  Congress,  and  was  superior  to  the  jurisdiction  of  the  State 
Court.  The  writ  issued  did  not  enlarge  the  jurisdiction  of  the 
court,  but  was  only  auxiliary  process,  to  obtain  the  record  of 
the  case,  and  enable  this  court  to  exercise  jurisdiction  speedily 
and  justlj^  Conceding  for  a  moment  that  Congress  has  the  power 
to  confer  judicial  functions  upon  a  clerk  of  a  Circuit  Court,  no 
such  legislative  intention  can  be  inferred  from  the  language  of 
imperative  command  used  in  the  statute, — ^the  clerk  ''shall  issvie 
a  writ  of  certiorari  to  the  State  Court,  requiring  it  to  send  to 
the  Circuit  Court  the  record  and  proceedings  in  the  cause."  If 
a  judge  in  court  had  made  such  an  order,  a  deputy  clerk  would 
undoubtedly  have  acted  as  a  ministerial  officer  in  issuing  the  writ. 
The  positive  order  of  the  law  is  certainly  as  mandatory  as  the 
order  of  its  judicial  officer.  This  writ  is  generally  awarded  as 
an  auxiliary  to  the  exercise  of  judicial  authority,  but  there  is 
nothing  in  the  Constitution  that  prevents  Congress  from  direct- 
ing the  clerk  of  a  court  to  issue  such  writ  in  his  ministerial  ca- 
pacity. A  return  to  the  writ  can  properly  be  made  by  the  clerk 
of  the  inferior  court  under  his  hand  and  the  seal  of  the  court. 
If  the  defendants  in  this  case  had  been  in  actual  custod.y,  and  in 
their  petition  had  made  application  for  a  writ  of  habeas  corpus 
cum  causa,  there  is  no  reason  why  the  deputy  clerk  should  not 
have  issued  the  writ.  This  is  not  the  high  prerogative  writ  of 
habeas  corpus,  which  can  only  be  awarded  by  judicial  authority. 
All  kinds  of  writs  of  habeas  corpus  are  subject  to  the  control  and 


328  Cases  on  Federal  Procedure 

regulation  of  Congress,  acting  within  the  limits  imposed  by  the 
Constitution.  Congress  has  conferred  power  upon  the  courts  of 
the  United  States  to  issue  "writs  of  habeas  corpus,"  and  this 
grant  of  authority  includes  every  species  of  the  writ.  Rev.  St. 
U.  S.  §  751 ;  Ex  parte  Bollman,  4  Cranch  75.  In  section  752, 
Congress  has  only  conferred  power  upon  the  judges  of  said  courts, 
in  vacation,  to  award  writs  of  habeas  corpus  for  the  purpose  of 
an  inquirj^  into  the  cause  of  restraint  of  liberty, — the  high  pre- 
rogative and  judicial  writ.  In  section  643,  Congress  has  been 
proper  to  employ  the  old  common-law  writ  of  habeas  corpus  cum 
causa  to  be  issued  by  a  court  in  session,  or  clerk  of  the  court  in 
vacation,  in  the  removal  of  certain  specified  cases  from  State  courts 
to  Federal  courts  for  trial.  This  writ  had  become  almost  obsolete 
in  England  and  this  country,  and  we  must  look  to  the  common 
law  to  ascertain  its  nature  and  application.  This  old  common- 
law  writ  issued  out  of  the  courts  of  "Westminster,  and  afforded 
a  very  liberal  and  expeditious  mode  of  procedure  for  the  removal 
of  causes.  It  was  grantable  of  common  right,  at  all  times,  with- 
out any  motion  in  court,  and  it  instantlj^  superseded  all  pro- 
ceedings in  the  court  below.  It  was  awarded  by  the  law  without 
the  leave  of  the  court.  Ex  parte  Bollman,  supra;  3  Bl.  Comm. 
130 ;  Tidd,  Pr.  297.  Upon  a  fair  and  reasonable  construction  of 
section  643,  it  is  evident  that  Congress  well  knew  the  nature  of 
the  common-law  writs  mentioned,  and  intended  them  to  be  em- 
ploj'ed  by  the  Circuit  courts  as  auxiliary  and  expeditious  remedial 
process  in  the  removal  of  causes,  and  in  aid  of  jurisdiction  already 
acquired  by  the  filing  of  a  petition  in  conformity  with  the  re- 
quirements of  the  statute.  To  this  end  the  law  positively  directs 
and  commands  the  clerks  of  such  courts  to  issue  such  remedial 
process  when  the  courts  are  not  in  session.     *     *     * 

I  have  been  informed  that  the  Supreme  Court  of  this  State  has 
affirmed  the  judgment  of  the  court  below  in  this  case,  but  I  have 
not  seen  the  opinion  filed.  I  desire  to  have  an  opportunity  of 
carefully  reading  and  considering  such  opinion  before  I  proceed 
further.  I  have  confidence  in  the  ability,  integrity,  learning,  and 
patriotism  of  the  justices  who  preside  in  that  distinguished  court; 
and  I  have  learned  that  questions  of  law  arising  upon  the  face 
of  the  record  were  discussed  and  determined  which  were  not  pre- 
sented on  the  trial  in  the  court  below.  It  is  ordered  that  this  case 
1)6  continued  to  the  next  term,  and  that  the  defendants  enter  into 
recognizance  for  their  apj)earanee. 

The  solicitor  of  the  Stale  for  this  district,  being  present,  waived 
any  ftirtlur  nolice  of  this  proceeding  of  the  court. 


District  Courts  329 

Supplemental  Opinion. 

(At  Chambers.    March  14,  1892.) 

Since  delivering  and  writing  the  foregoing  opinion,  I  have  seen 
the  decision  of  the  Supreme  Court  of  this  State  (14  S.  E.  Rep, 
796),  affirming  the  judgment  of  the  court  below.  I  will  make  no 
comment  on  the  general  tone  and  spirit  of  the  language  of  the 
court,  but  will  only  view  it  as  an  honest,  strong,  and  decided  ex- 
pression of  judicial  opinion,  manifesting  a  jealous  and  watchful 
care  over  the  jurisdictional  rights  of  State  courts.  The  principal 
ground  of  the  decision  was  the  question  of  law  discussed  and  de- 
cided in  the  Superior  Court,  as  to  the  right  and  power  of  a  deputy- 
clerk,  in  the  name  of  the  clerk,  to  receive  and  file  the  petition 
for  removal,  and  to  issue  the  auxiliary  writ  of  certiorari  that  was 
served  by  the  United  States  marshal  upon  the  clerk  of  the  State 
Superior  Court,  and  subsequently^  read  in  open  court  before  the 
trial  of  the  case.  Upon  this  subject,  I  have  nothing  to  add  to 
what  I  have  already  said  in  my  foregoing  opinion,  except  to  ex- 
press my  surprise  at  the  legal  conclusions  of  the  distinguished 
court  which  has  so  often  shown  a  liberal  and  enlightened  policy 
in  defining  the  ministerial  functions  of  a  clerk  of  a  court,  and  in 
sustaining  the  action  of  deputy  clerks  in  facilitating  the  adminis- 
tration of  substantial  justice. 

It  is  not  my  purpose  to  discuss  at  any  length  the  questions  of 
law  considered  by  the  State  Supreme  Court,  which  were  not  relied 
upon  in  the  trial  of  the  case  in  the  court  below.  I  desire  simply 
to  express  my  nonconcurrence,  and  offer  a  few  reasons  that  in- 
fluence me  in  my  opinion.  I  certainly  do  not  concur  in  the  views 
of  the  Supreme  Court  in  regard  to  a  strict  and  technical  con- 
struction of  the  removal  statute  referred  to.  Section  643,  Rev. 
St.  U.  S.  This  statute  is  a  part  of  the  revenue  system  of  the 
general  government,  and  the  United  States  Supreme  Court  has 
often  decided  that  revenue  statutes  are  remedial  in  their  nature, 
and  are  to  be  construed  liberally  to  carry  out  the  purpose  of  their 
enactment ;  and  what  is  implied  in  them  is  as  much  a  part  of  the 
enactment  as  what  is  expressed.  The  intention  of  the  lawmakers 
and  the  reasons  and  object  of  the  law  are  considerations  of  great 
weight  in  the  construction  of  the  statute.  Smythe  v.  Fiske,  23 
Wall.  374.  In  the  opinion  of  the  Supreme  Court  it  is  insisted  that 
the  writ  of  certiorari  issued  by  the  clerk  of  the  Ci/cuit  Court 
in  this  case  was  not  in  proper  form  and  properly  directed.     I 


330  Cases  on  Federal  Procedure 

will  readily  concede  that  such  writ  is  not  in  conformity  with  a 
writ  of  certiorari  at  common  law,  but  there  is  good  reason  in  this 
case  for  a  departure  from  such  usual  and  established  form.  At 
common  law  the  certiorari  is  a  writ  issued  by  a  Superior  Court 
having  jurisdiction,  directed  to  an  inferior  court,  commanding  it, 
through  its  clerk,  to  certify  and  return  the  record  and  proceed- 
ings in  a  particular  case  pending  before  it  to  the  higher  court. 
A  court  that  has  authority  to  command  the  performance  of  a  duty 
has  competent  power  to  enforce  obedience  by  compulsory  process. 
Circuit  courts  of  the  United  States  are  not  higher  courts  than  the 
State  Superior  courts,  and  under  the  provisions  of  section  643 
have  no  authority  to  command  State  courts  and  enforce  obedience. 
Under  this  section.  Congress  has  not  invested  the  Circuit  courts 
with  any  such  coercive  authority,  but  provision  has  been  made  for 
such  courts  to  notify  and  require  the  State  courts  to  certify  their 
records  and  proceedings;  and,  if  such  requirements  are  disre- 
garded. Circuit  courts  can  supply  the  record,  and  proceed  to  make 
disposition  of  cases  removed  without  the  requested  assistance  of 
the  State  courts.  Under  such  circumstances,  I  am  of  opinion  that 
the  writ  of  certiorari  in  this  case  was  appropriate,  and  is  not  justly 
subject  to  criticism  for  informality.  It  was  issued  under  the  seal 
of  a  court  of  competent  jurisdiction,  was  delivered  to  the  clerk 
of  the  State  Court  by  the  marshal,  was  read  in  open  court  before 
the  trial,  respectfully  gave  information  to  the  State  Court  of  the 
sufficient  grounds  upon  which  Circuit  Court  assumed  jurisdiction, 
and  notified  the  State  Court  of  the  duty  imposed  upon  it  by  law. 
The  purpose  of  issuing  the  writ  of  certiorari  was  not  to  require  the 
State  Court  to  surrender  jurisdiction  and  remove  the  cause  to  the 
Circuit  Court,  but  simply  to  require  a  return  of  the  record  of 
the  case,  duly  authenticated  by  its  clerk.  Under  this  statute  the 
State  courts  have  no  essential  agency  in  the  removal  of  causes. 
All  proceedings  for  removal  are  conducted  in  the  Circuit  Court, 
and  the  auxiliary  writs  of  certiorari  and  habeas  corpus  cum  causa, 
served  on  the  clerk  of  the  State  Court,  are  not  essential  to  removal, 
but  are  used  after  the  Circuit  Court  has  acquired  jurisdiction  for 
the  purpose  of  notifying  the  State  Court  of  such  assumed  juris- 
diction, and  preparing  the  removed  case  for  trial.  The  Circuit 
Court  does  not  coininaud  Ihat  State  Court  to  surrender  jurisdic- 
tion, for  such  jurisdiction  is  transferred  to  the  Circuit  Court  by 
the  operation  of  a  par.inionnt  law.  This  opci-ation  of  law  cannot 
be  justly  regarded  as  arbitrary  and  despotic,  as  it  was  put  in  force 
by  the  legislative  representatives  of  a  free  and  enlightened  people, 


District  Courts  331 

and  has  been  sanctioned  by  long  experience  and  by  the  decisions 
of  the  highest  judicial  tribunal  of  the  nation,  and  pronounced  to 
be  essential  to  the  safety  and  efficient  operation  of  the  Federal 
Government.  A  case  removed  under  this  statute  is  tried  in  ac- 
cordance with  State  laws,  by  a  jury  composed  of  the  best  citizens  of 
the  State,  under  the  direction  of  a  judge  bound  by  official  obli- 
gation to  correctly  administer  such  State  laws. 

It  is  further  insisted  in  the  opinion  of  the  State  Supreme  Court 
that  the  writ  of  certiorari  in  this  case  is  defective,  in  that  it  does 
not  show  on  the  face  that  the  clerk  had  expressly  adjudged  the 
petition  to  be  sufficient  to  serve  the  purpose  contemplated.  The 
statute  declares  in  clear  and  express  terms  what  representations 
of  facts  in  the  petition,  and  what  verification,  shall  give  the  peti- 
tion filed  the  force  and  effect  of  removing  the  case.  The  truth 
of  such  representations  is  matter  of  subsequent  inquiry  and  deter- 
mination. The  only  duty  imposed  upon  the  clerk  is  to  examine 
the  papers  and  see  that  the  formal  requirements  of  the  law  are 
complied  with.  He  determines  these  matters  by  the  ministerial 
acts  of  inspection  and  comparison,  and  manifests  his  approval  in 
no  other  way  than  by  filing  the  petition  in  his  office,  and  entering 
the  case  on  the  docket.  This  implied  approval  clearly  appears 
in  the  writ  of  certiorari  that  was  issued  in  this  case. 

It  is  further  insisted  that  "the  process  going  from  the  Circuit 
Court  to  the  State  Court  must  state  the  substance  of  the  ground 
of  the  authority  of  the  former,  and  the  purpose  of  the  command 
of  the  writ."  This  alleged  requisite,  if  adopted  in  practice,  would 
introduce  a  novel  feature  into  a  writ  of  certiorari,  unknown  to 
the  common  law.  At  common  law,  it  was  a  prerogative  writ, — 
a  mandate  of  the  crown, — issued  by  a  court  that  was  invested 
with  a  plentitude  of  power  over  all  inferior  courts  of  the  realm, 
and  had  a  right  to  command  them  to  return  authenticated  records 
and  proceedings  in  a  particular  case  for  trial  or  correction  of 
errors.  The  courts  of  the  United  States  derive  authority  to  issue 
such  a  writ  from  the  Constitution  and  the  legislation  of  Con- 
gress; and  the  nature  and  purpose  of  the  writ  has  been  set  forth 
in  acts  of  Congress,  and  in  frequent  decisions  of  Federal  courts. 
It  seems  to  me  that  it  would  be  unnecessary  and  improper  for  a 
Circuit  Court  of  the  United  States,  in  removal  proceedings,  to 
inform  a  State  Court,  in  more  specific  terms  than  were  used  in 
this  case,  of  the  grounds  of  its  authority,  and  the  purpose  of  the 
writ,  when  such  matters  are  disclosed  by  public  and  paramount 
law,  presumed  to  be  well  known  to  all  courts. 


332  Cases  on  Federal  Procedure 

It  is  further  insisted  that  the  proceedings  before  the  clerk  of 
the  Circuit  Court  were  defective  and  insufficient  to  effect  a  re- 
moval of  the  case  from  the  State  Court,  in  that  no  writ  of  habeas 
corpus  cum  causa  was  issued  by  said  clerk.  As  the  defendants 
were  on  bail,  and  not  in  actual  custody,  a  writ  of  habeas  corpus 
was  unnecessary.  The  bail  bond  filed  in  the  State  Court,  by  ex- 
press provision  of  law,  was  effectual  to  secure  the  appearance  of 
the  defendants  in  the  Circuit  Court.  The  defendants  made  no 
application  in  their  petition  for  a  writ  of  habeas  corpus.  Before 
such  a  writ  can  be  properly  issued,  it  must  be  applied  for,  and 
the  petition  must  allege  that  the  party  is  imprisoned  or  detained 
against  his  will  without  authority  of  law. 

I  have  prolonged  this  discussion  further  that  I  at  first  intended. 
The  judgment  of  the  Superior  Court  against  the  defendants  for 
the  offense  with  which  they  were  charged  and  convicted  by  a  jury 
was  not  oppressive  or  unreasonable.  I  feel  sure  that  the  judge 
of  the  Superior  Court,  in  his  ruling,  was  prompted  by  a  high 
sense  of  judicial  duty.  I  entertain  the  highest  respect  for  the 
State  Supreme  Court,  and  read  with  pleasure  and  benefit  its  able, 
learned,  and  instructive  opinions ;  and  I  sincerely  regret  that  an 
occasion  has  arisen  which  has  produced  a  conflict  of  judicial  opin- 
ion and  authority.^ 


In  the  State  of  Virginia  v.  Felts,  133  Fed.  85  (1904),  Mc- 
Dowell, District  Judge,  speaking  in  relation  to  a  statute  similar 
to  section  35  of  the  Judicial  Code,  said: 

"Where  the  petitioner  has  paid  or  tendered  to  the  clerk  of  the 
State  Court  his  proper  fees,  and  the  clerk  fails  or  refuses  to  fur- 
nish a  properly  certified  copy  of  the  record,  I  think  a  writ  of 
certiorari  should  issue.  This  has  been  done  in  some  cases  (Ten- 
nessee V.  Davis,  100  U.  S.  257,  25  L.  Ed.  648;  State  v.  Sullivan 
(C.  C),  50  Fed.  593),  and  the  mere  absence  of  an  express  pro- 
vision in  section  643  allowing  such  a  writ  to  issue  does  not  justify 
a  refusal  to  issue  it.  Section  645  is  authority  for  supplying  the 
record  either  by  affidavit"  or  otherwise. 

"The   ease   of   a   pauper  petitioner  might   present   some   diffi- 

2  Only    a    portion    of    the    opiTiion    is    ro|)rint('d. 

For  !i  further  definition  of  "  li;il)eaH  corpiis  cum  causa,"  see  2  Bouvier'a 
Law    Dictionary,    HawIe'H   Tliird    Ivlition,    p.    1407. 

Compare  State   v.   Sullivan,   llO  N.  C.   513,   14   S.   E.  796   (1892).— Ed. 


District  Courts  333 

culties.  Neither  the  State  statute  (section  3538,  Code  1887  (2 
Code  1904,  p.  1890),  nor  the  Federal  statute  (Act  July  20,  1892, 
c.  209,  27  Stat.  252;  1  U.  S.  Comp.  St.  1901,  p.  707),  covers  the 
case.  If  the  petitioner  were  unable  to  pay  the  fees  of  the  State 
clerk,  perhaps  the  best  course  would  be  to  supply  the  contents  of 
the  indictment  by  affidavit." 


GUERNSEY  v.  CROSS. 

Circuit  Court,  D.  Maine.     1907. 

153  Fed.  827. 

Hale,  District  Judge. — This  action  at  law  was  begun  in  the 
Supreme  Judicial  Court  of  the  State  of  Maine  for  the  Count}'' 
of  Piscataquis  by  a  writ  of  attachment  against  the  property  of 
the  defendant,  who  is  alleged  to  reside  in  Boston,  in  the  Common- 
wealth of  Massachusetts.  The  writ  was  returnable  at  Dover,  in 
said  County  of  Piscataquis,  on  the  last  Tuesday  of  February, 
1907,  and  was  entered  on  that  day  in  that  court.  It  appears  by 
the  record  of  the  State  Court  before  me  that  upon  the  second  day 
of  the  term  a  motion  to  dismiss  was  filed.  The  motion  to  dismiss 
alleges  that  the  State  Court  had  no  jurisdiction  over  the  defend- 
ant's person,  because  the  defendant  was  a  non-resident  of  the 
State,  and  because  it  does  not  appear  by  the  writ  and  officer's 
return  of  record  that  he  was  ever  served  with  process  within  the 
limits  of  the  State,  or  that  any  property  belonging  to  him  was 
found  within  the  State,  or  that  there  had  been  any  service  of 
writ  or  process  upon  his  tenant,  agent,  or  attorney  in  the  State 
of  Maine.  The  motion  further  alleges  that  the  writ  should  be 
dismissed  for  the  reason  that  the  action  is  brought  by  the  plain- 
tiff in  the  capacity  of  trustee  in  bankruptcy  of  the  Dews  Woolen 
Company,  a  corporation  organized  under  the  laws  of  Maine,  and 
having  its  place  of  business  in  Dexter,  in  the  County  of  Penobscot ; 
that  the  defendant  is  a  non-resident  of  Maine ;  and  that  the  action 
should  have  been  returnable  in  Penobscot  County,  the  residence 
of  the  bankrupt  corporation,  and  not  in  Piscataquis  Countj'",  where 
the  trustee  in  bankruptcy  resides.  The  record  shows  that  the 
motion  to  dismiss  was  overruled  on  the  day  of  its  filing,  and  there- 


334  Cases  on  Federal  Procedure 

apon  exceptions  were  taken  by  defendant,  and  were  filed  and  al- 
lowed. Counsel  on  both  sides  admit  that  the  motion  was  argued 
in  the  State  Court,  and  was  decided  upon  argument  in  that  court. 
Without  carrying  the  exceptions  forward,  however,  the  defendant 
appears  by  the  docket  entries  to  have  presented  his  removal  papers 
after  the  motion  to  dismiss  had  been  overruled  and  exceptions 
taken.  The  State  Court  thereupon  proceeded  no  further.  The 
ease  therefore  comes  to  this  court  by  removal.  On  April  16th, 
the  first  daj^  of  the  April  term  of  this  court,  the  defendant  filed 
a  motion  to  dismiss  the  writ.  The  motion  is  the  same,  in  sub- 
stance, and  practically  the  same  in  form,  as  the  motion  made  and 
overruled  in  the  State  Court. 

It  appears,  then,  that  the  Supreme  Judicial  Court  of  Maine 
acted  upon  this  question  before  the  removal  of  the  cause  to  this 
court,  and  that  it  had  jurisdiction  in  the  premises.  The  defend- 
ant's motion  was  overruled  in  the  State  Court,  after  a  full  pres- 
entation of  the  same  to  that  court  and  arguments  upon  it.  The 
defendant  excepted  to  the  ruling  of  the  State  Court.  Instead  of 
waiting,  however,  to  prosecute  his  exceptions  before  the  appellate 
tribunal  of  the  State,  he  removed  the  cause  to  the  Federal  Court. 
The  renewal  of  the  same  motion  in  the  Federal  Court  is  practically 
an  attempt  to  appeal  the  cause  from  the  State  Court  to  the  Federal 
Court  upon  the  questions  which  arise  under  this  motion.  The 
motion  in  this  court  is  based  upon  a  misapprehension  of  the  effect 
of  renewals  from  the  State  Court  to  the  Federal  Court.  Upon 
removal  of  a  cause,  the  Federal  Court  does  not,  in  any  way,  act  as 
a  court  of  appeals.  It  takes  the  case  precisely  as  it  finds  it,  ac- 
cepting all  decrees  and  orders  of  the  State  Court  as  adjudica- 
tions. In  this  case,  we  might  have  had  a  very  serious  doubt  upon 
one  question  arising  under  this  motion,  if  the  motion  had  come 
before  us  in  the  first  instance,  instead  of  having  been  presented 
to,  and  decided  by,  the  State  Court,  before  the  removal  of  the 
cause.  But  we  take  the  cause  as  we  find  it  when  it  left  the  State 
Court.    We  cannot  treat  the  decree  of  that  court  as  a  nullity. 

In  Duncan  v.  Gegan,  101  U.  S.  810,  812,  25  L.  Ed.  875,  in  de- 
livering the  opinion  of  the  Supreme  Court,  Mr.  Chief  Justice 
Waite  said : 

"The  transfer  of  the  suit  from  the  State  Court  to  the  Circuit 
Court  did  not  vacate  what  had  been  done  in  the  State  Court 
previous  to  the  removal.  The  Circuit  Court,  when  a  transfer  is 
effected,   takes  the  case  in  the  condition  it  was  when  the  State 


District  Courts  335 

Court  was  deprived  of  its  jurisdiction.  The  Circuit  Court  has 
no  more  power  over  what  was  done  before  the  removal  than  the 
State  Court  would  have  had  if  the  suit  had  remained  there.  It 
takes  the  case  up  where  the  State  Court  left  off.  *  *  *  Dun- 
can, who  caused  the  removal  to  be  made,  is  the  only  party  who 
complains  of  the  decree  below,  and  he  cannot  object  here  to  what 
has  been  done  below  by  his  own  procurement."  Wabash  Western 
Railway  v.  Brow,  164  U.  S.  271,  17  Sup.  Ct.  126,  41  L.  Ed.  431 ; 
French  v.  Hay,  22  Wall.  231,  22  L.  Ed.  799;  Brooks  v.  Farwell 
(C.  C),  4  Fed.  166;  Loomis  v.  Carrington  (C.  C),  18  Fed.  97; 
Allmark  v.  Platte  S.  S.  Co.  (C.  C),  76  Fed.  615;  Bragdon  v. 
Perkins-Campbell  Co.  (C.  C),  82  Fed.  338. 

In  Bragdon  v.  Perkins-Campbell  Co.,  supra,  the  Federal  Court 
applied  the  rule  to  a  State  of  facts  very  similar  to  that  presented 
in  the  case  at  bar. 

In  Loomis  v.  Carrington,  supra,  the  Federal  Court  expressed 
doubt  as  to  the  correctness  of  the  ruling  of  the  State  Court,  but 
stated  the  rule  as  the  Supreme  Court  has  given  it  in  Duncan  v. 
Gegan,  supra. 

In  Milligan  v.  Lalance  Co.  (C.  C),  17  Fed.  465,  Judge  Brown 
stated  the  rule  as  we  have  given  it.  He  took  action,  however, 
upon  a  matter  which  had  been  pending  in  the  State  Court  when 
the  cause  was  removed,  but  which  had  not  been  decided  in  that 
court.    Judge  Brown  said: 

*'If  this  motion  were  in  the  nature  of  an  appeal,  or  even  of  a 
motion  for  rehearing  or  reargument,  as  the  plaintiff  contends,  it 
must  have  been  denied.  But  it  cannot  be  so  considered.  At  the 
time  the  cause  was  removed,  a  motion  for  a  modification  of  the 
order  had  been  entertained  by  the  general  term,  and  was  then 
pending  and  unheard.  That  application  must  be  disposed  of  by 
this  court.  It  is  brought  before  it  by  means  of  this  motion,  and 
in  disposing  of  it  this  court  must  necessarily  act  as  the  general 
term,  and  may  and  should  make  any  proper  order  consistent  with 
the  prior  general  term  decision,  which,  upon  that  motion,  it  was 
competent  for  the  general  term  to  make." 

In  Miner  v.  Markham  (C.  C),  28  Fed.  387,  395,  the  Federal 
Court  acted  upon  a  matter  where  the  State  Court  had  denied 
the  motion,  but  had  expressly  held  that  it  was  without  prejudice 
to  a  renewal  of  the  same.  The  court  held  that  under  those  cir- 
cumstances the  defendant  had  not  waived  his  privilege,  and  could 
assert  it  in  the  Federal  Court  with  the  same  force  and  effect  as  if 


336  Cases  on  Federal  Procedure 

the  suit  had  been  brought  and  the  motion  made  in  the  Federal 
Court  in  the  first  instance,  citing  Harkness  v.  Hj'de,  98  U.  S. 
476,  25  L.  Ed.  237. 

If,  then,  in  the  case  at  bar,  the  defendant  had  made  his  mo- 
tion to  dismiss,  and,  pending  such  motion,  and  before  its  denial, 
had  removed  the  cause  to  this  court,  he  could  be  heard  in  this 
court  upon  that  motion,  under  Judge  Brown's  decision  in  Mil- 
ligan  V.  Lalanee,  etc.,  Co.,  supra.  If  the  defendant  had  made  his 
motion  in  the  State  Court  before  removal,  and  the  State  Court 
had  denied  his  motion,  but  had  made  a  special  ruling  that  such 
denial  was  without  prejudice  to  its  renewal,  we  could  then  have 
held  that  the  defendant  had  not  waived  his  privilege,  but  could 
assert  it  in  the  Federal  Court  with  the  same  force  that  he  might 
have  renewed  it  in  the  State  Court,  or  that  he  might  have  made 
it  in  this  court  if  the  suit  had  been  brought  in  the  first  instance 
in  this  court.    Miner  v.  Markham,  supra. 

But  this  cause  presents  a  clear  case  for  the  application  of  the 
general  rule  in  Duncan  v.  Gegan,  supra.  The  defendant  made 
his  motion  to  dismiss  in  the  State  Court,  before  the  removal  of 
the  cause  to  this  court,  argued  it  to  the  State  Court,  was  over- 
ruled by  the  State  Court,  and  filed  his  exceptions  in  the  State 
Court.  He  cannot  now  be  heard  to  object  to  what  was  done  in 
the  State  Court  by  his  own  procurement.  The  Federal  Court 
takes  a  case  up  where  the  State  Court  left  it,  and  must  recognize 
the  decree  which  the  State  Court  made  upon  a  question  withir 
its  cognizance. 

The  motion  of  the  defendant  is  overruled. 


MONTGOMERY  COUNTY  v.  COCHRAN. 

Circuit  Court,  M.  D.  Alabama.     1902. 

116  Fed.  985. 

JoNF.s,  District  Judge. — Counsel  agree  that  the  failure  to  de- 
mand a  jury  in  llie  State  Court  cannot  effect  the  right  to  a  jury 
trial  in  thn  oourls  of  the  United  States.  Of  the  correctness  of 
tliis  conclnsion  tliore  can  bo  no  donbt.  Tlic  waiver  effected  by 
llif  Staff  law  applies  only  to  the  riglit  of  jury  trial  given  by  the 
Constitnt  ion  di"  tlir  Shite  in  llic  St;itc  Court.    The  right  to  a  jury 


District  Courts  337 

here  depends  upon  the  Constitution  of  the  United  States.  State 
laws  cannot  effect  this  right.  The  reason  which  induced  the  order 
of  removal  make  it  proper  that  citizens  of  the  County  of  Mont- 
gomery shall  not  sei-ve  on  the  jury.  The  parties  will  have  an 
opportunity  to  agree  upon  the  part  of  the  district  from  which 
the  jurors  will  be  summoned,  before  any  order  is  made  on  that 
subject.^ 


SECTION  IV. 
Miscellaneous  Provisions. 

UNITED  STATES  v.  RODGERS. 

Supreme  Court  of  the  United  States.     1893. 

150  U.  S.  249,  14  Sup.  Ct.  109,  37  L.  Ed.  1071. 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

Several  questions  of  interest  arise  upon  the  construction  of 
section  5346  of  the  Revised  Statutes,  upon  which  the  indictment 
in  this  case  was  found.  The  principal  one  is  whether  the  term 
''high  seas,"  as  there  used,  is  applicable  to  the  open,  unenclosed 
waters  of  the  Great  Lakes,  between  which  the  Detroit  River  is  a 
connecting  stream.     *     *     * 

In  his  treatise  on  the  rights  of  the  sea,  Sir  Matthew  Hale  says : 
"The  sea  is  either  that  which  lies  within  the  body  of  a  county, 
or  without.  That  arm  or  branch  of  the  sea  which  lies  within  the 
fauces  terrae,  where  a  man  may  reasonably  discern  between  shore 
and  shore,  is  or  at  least  may  be,  within  the  body  of  a  county,  and, 
therefore,  within  the  jurisdiction  of  the  sheriff  or  coroner.  That 
part  of  the  sea  which  lies  not  within  the  body  of  a  county  is  called 
the  main  sea  or  ocean."     De  Jure  Maris,  c.  iv.     By  the  "main 

1  Only   a   portion   of   the   opinion   is   reprinted. 

The  question  of  jurisdiction,  though  already  decided  by  the  state  court, 
may,  upon  removal,  be  passed  upon  by  the  Federal  Court.  Hudson  Nav. 
Co.  V.  Murray,  236  Fed.  419,  422  (1916).  But  see  Hoyt  v.  Ogden  Portland 
Cement  Co.,  185  Fed.  889,  899-900  (1911). 

As  to  the  right  of  the  Federal  Court  to  dissolve  or  modify  proceedings  of 
the  State  Court,  see  Mannington  v.  Hocking  Valley  Ey.  Co.,  183  Fed.  133, 
141-142    (1910).— Ed. 

Wheaton  C.  F.  P.— 22 


338  Cases  on  Federal  Procedure 

sea"  Hale  here  means  the  same  thing  expressed  by  the  term  "high 
sea" — "mare  altum,"  or  "lehaut  meer. " 

In  Waring  v.  Clark,  5  How.  440,  453,  this  court  said  that  it 
had  been  frequently  adjudicated  in  the  English  common  law 
courts  since  the  restraining  statutes  of  Richard  II.  and  Henry 
IV.,  "that  high  seas  mean  that  portion  of  the  sea  which  washes 
the  open  coast."  In  United  States  v.  Crush,  5  Mason  290,  it  was 
held  by  Mr.  Justice  Story,  in  the  United  States  Circuit  Court, 
that  the  term  "high  seas,"  in  its  usual  sense,  expresses  the  un- 
enclosed ocean  or  that  portion  of  the  sea  which  is  without  the 
fauces  terrae  on  the  sea  coast,  in  contradistinction  to  that  which 
is  surrounded  or  enclosed  between  narrow  headlands  or  promon- 
tories. It  was  the  open,  unenclosed  waters  of  the  ocean,  or  the 
open,  unenclosed  waters  of  the  sea,  which  constituted  the  "high 
seas"  in  his  judgment.  There  was  no  distinction  made  by  him 
between  the  ocean  and  the  sea,  and  there  was  no  occasion  for  any 
such  distinction.  The  question  in  issue  was  whether  the  alleged 
offenses  were  committed  within  a  county  of  Massachusetts  on  the 
sea  coast,  or  without  it,  for  in  the  latter  case  they  were  committed 
upon  the  high  seas  and  within  the  statute.  It  was  held  that  they 
were  committed  in  the  County  of  Suffolk,  and  thus  were  not  covered 
by  the  statute. 

If  there  were  no  seas  other  than  the  ocean,  the  term  "high  seas" 
would  be  limited  to  the  open,  unenclosed  waters  of  the  ocean. 
But  as  there  are  other  seas  besides  the  ocean,  there  must  be  high 
seas  other  than  those  of  the  ocean.  A  large  commerce  is  con- 
ducted on  seas  other  than  the  ocean  and  the  English  seas,  and  it 
is  equally  necessary  to  distinguish  between  their  open  waters  and 
their  ports  and  havens,  and  to  provide  for  offences  on  vessels 
navigating  those  waters  and  for  collisions  between  them.  The 
term  "high  seas"  does  not,  in  either  case,  indicate  any  separate 
and  distinct  body  of  water;  but  only  the  open  waters  of  the  sea 
or  ocean,  as  distinguished  from  ports  and  havens  and  waters  within 
narrow  headlands  on  the  coast.  This  distinction  was  observed  by 
Latin  writers  between  the  ports  and  havens  of  the  Mediterranean 
and  its  open  waters — the  latter  being  termed  the  high  seas.  In 
that  sense  the  term  may  also  be  properly  used  in  reference  to  the 
open  waters  cf  Ihe  Baltic  and  the  Black  Sea,  both  of  which  are 
inland  seas,  finding  their  way  to  the  ocean  by  a  narrow  and  distant 
diannel.  Indeed,  wherever  there  ai'c  seas  in  fact,  free  to  the  navi- 
gation of  all  nations  and  people  on  their  borders,  their  open  waters 
outside  of  ihr  jtDrtion  "surrounded  or  enclosed  between  narrow 


District  Courts  339 

headlands  or  promontories,"  on  the  coast,  as  stated  by  Mr.  Justice 
Story,  or  "without  the  body  of  a  county,"  as  declared  by  Sir 
Matthew  Hale,  are  properly  characterized  as  high  seas,  by  what- 
ever name  the  bodies  of  which  they  are  a  part  may  be  designated. 
Their  names  do  not  determine  their  character.  There  are,  as  said 
above,  high  seas  on  the  Mediterranean  (meaning  outside  of  the 
enclosed  waters  along  its  coast),  upon  which  the  principal  com- 
merce of  the  ancient  world  was  conducted  and  its  great  naval 
battles  fought.  To  hold  that  on  such  seas  there  are  no  high  seas, 
within  the  true  meaning  of  that  term,  that  is,  no  open,  unenclosed 
waters,  free  to  the  navigation  of  all  nations  and  people  on  their 
borders,  would  be  to  place  upon  that  term  a  narrow  and  con- 
tracted meaning.  "We  prefer  to  use  it  in  its  true  sense,  as  ap- 
plicable to  the  open,  unenclosed  waters  of  all  seas,  than  to  adhere 
to  the  common  meaning  of  the  term  two  centuries  ago,  when  it 
was  generally  limited  to  the  open  waters  of  the  ocean  and  of  seas 
surrounding  Great  Britain,  the  freedom  of  which  was  then  the 
principal  subject  of  discussion.  If  it  be  conceded,  as  we  think  it 
must  be,  that  the  open,  unenclosed  waters  of  the  Mediterranean 
are  high  seas,  that  concession  is  a  sufficient  answer  to  the  claim 
that  the  high  seas  always  denote  the  open  waters  of  the  ocean. 

Whether  the  term  is  applied  to  the  open  waters  of  the  ocean 
or  of  a  particular  sea,  in  any  case,  will  depend  upon  the  context 
or  circumstances  attending  its  use,  which  in  all  cases  affect,  more 
or  less,  the  meaning  of  language.  It  may  be  conceded  that  if  a 
statement  is  made  that  a  vessel  is  on  the  high  seas,  without  any 
qualification  by  language  or  circumstance,  it  will  be  generally 
understood  as  meaning  that  the  vessel  is  upon  the  open  waters  of 
one  of  the  oceans  of  the  world.  It  is  true,  also,  that  the  ocean 
is  often  spoken  of  by  writers  on  public  law  as  the  sea,  and  char- 
acteristics are  then  ascribed  to  the  sea  generally  which  are  prop- 
erly applicable  to  the  ocean  alone;  as,  for  instance,  that  its  open 
waters  are  the  highway  of  all  nations.  Still  the  fact  remains  that 
there  are  other  seas  than  the  ocean  whose  open  waters  constitute 
a  free  highway  for  navigation  to  the  nations  and  people  residing 
on  their  borders,  and  are  not  a  free  highway  to  other  nations  and 
people,  except  there  be  free  access  to  those  seas  by  open  waters 
or  by  conventional  arrangements. 

As  thus  defined,  the  term  would  seem  to  be  as  applicable  to 
the  open  waters  of  the  great  Northern  lakes  as  it  is  to  the  open 
waters  of  those  bodies  usually  designated  as  seas.  The  Great  Lakes 
possess  every  essential  characteristic  of  seas.     They  are  of  large 


340  Cases  on  Federal  Procedure 

extent  in  length  and  breadth ;  they  are  navigable  the  whole  dis- 
tance in  either  direction  by  the  largest  vessels  known  to  com- 
merce ;  objects  are  not  distinguishable  from  the  opposite  shores ; 
they  separate,  in  many  instances,  States,  and  in  some  instances 
constitute  the  boundary  between  independent  nations;  and  their 
waters,  after  passing  long  distances,  debouch  into  the  ocean.  The 
fact  that  their  waters  are  fresh  and  not  subject  to  the  tides,  does 
not  affect  their  essential  character  as  seas.  Many  seas  are  tide- 
less,  and  the  waters  of  some  are  saline  only  in  a  very  slight  degree.^ 


UNITED  STATES  v.  TOWNSEND. 

District  Court,  S.  D.  New  York.     1915. 

219  Fed.  761. 

Henry  C.  Townsend  was  indicted  for  assault  on  a  member  of 
liis  crew  on  the  high  seas  and  filed  a  plea  in  bar  to  the  court's 
jurisdiction,  to  which  the  Government  demurred.     Overruled. 

Pope,  District  Judge. — The  defendant,  Townsend,  is  indicted  for 
having,  while  master  of  the  sailing  vessel  Manga  Reva,  and  while 
upon  the  high  seas  on  the  trip  from  San  Francisco  to  New  York, 
committed  an  assault  upon  one  John  Shea,  a  member  of  his  crew. 
The  indictment  is  under  section  291  of  the  Penal  Code  (Act  March 
4,  1909,  c.  321,  35  Stat.  1145  (Comp.  St.  1913,  §10464),  which 
so  far  as  here  material,  reads  as  follows : 

"Whoever,  being  the  master  or  officer  of  a  vessel  of  the  United 
States,  on  the  high  seas,  or  on  any  other  waters  within  the  ad- 
miralty and  maritime  jurisdiction  of  the  United  States,  beats, 
wounds,  *  *  *  any  of  the  crew  of  such  vessel,"  shall  be  pun- 
ished as  provided  by  law. 

The  plea  in  bar,  elucidated  by  the  mutually  conceded  facts  at 

1  Only    a    portion    of    the    opinion    is    rf'printed. 

Waters  \v}ii(h  once  were  a  Jiart  of  the  "  liigh  seas"  may,  by  enclosing 
1h<m  hy  hreakwaters,  rease  to  constitute  a  jiortion  of  the  "high  seas." 
Ex   parte  O'Hare,   179   Fed.   G62,   lO.'J   ('.   (!.   A.   220    (1910). 

To  tlie  effect  that  "out  of  any  particular  state"  nu'ans  out  of  any  state 
of  the  union,  see  IJnitetl  States  v.  Pirates,  18  U.  S.  (5  Wheaton)  184,  200, 
.'•.   L.   PM.  04,  r,H    (1820). 

For  the  meaning  of  "district,"  see  United  States  v.  Newth,  149  Fed. 
302,   302    (190(3).— Ed. 


District  Courts  341 

the  hearing,  shows  that  the  defendant  brought  his  ship  upon  the 
end  of  her  voj'^age  to  her  pier  in  the  Borough  of  Brooklyn,  County 
of  Kings,  and  thus  in  the  Eastern  District  of  New  York.  lie  was 
there  arrested  by  a  deputy  United  States  marshal  for  the  Eastern 
District  of  New  York  upon  a  warrant  issued  by  a  United  States 
commissioner  for  that  district,  and,  upon  being  arraigned  before 
such  commissioner,  was  held  to  appear  before  the  District  Court 
of  the  United  States  for  the  Southern  District  of  New  York.  Sub- 
sequently the  present  indictment  was  found  against  him  in  this 
court.  The  question  is  whether  the  ofifense  is  properly  laid  in  this 
district,  or  whether  the  ease  must  be  tried  in  the  Eastern  District 
of  New  York. 

(1)  The  venue  of  such  cases  is  prescribed  by  section  41  of  the 
Judicial  Code,  as  follows: 

"The  trial  of  all  offenses  committed  upon  the  high  seas,  or  else- 
where out  of  the  jurisdiction  of  any  particular  State  or  district, 
shall  be  in  the  district  where  the  offender  is  found,  or  unto  which 
he  is  first  brought," 

(2)  A  brief  consideration  of  the  meaning  of  the  terms  em- 
ployed will  be  helpful.  The  difference  between  "brought"  and 
"found"  is  the  difference  between  presence  of  involuntary  and 
voluntary  act.  By  "brought"  is  meant  taken,  or  carried.  An 
illustration  of  this  is  where  the  violator  of  law  upon  the  high  seas 
is,  following  the  crime,  taken  into  custody  upon  the  ship  and  then 
brought  into  port.  On  the  other  hand,  where  the  defendant,  not 
having  been  taken  into  custody,  is,  after  reaching  port,  arrested 
or  apprehended  under  lawful  authority  for  trial  for  the  offense, 
he  is  deemed  to  be  found  wherever  such  arrest  occurs.  Under  the 
statute,  the  prosecution  may  be  either  in  the  district  where  the 
defendant  is  first  brought  (i.  e.,  taken),  or  where  he  is  found  (i.  e., 
apprehended).  Kerr  v.  Shine,  136  Fed.  64,  69,  C.  C.  A.  69,  and 
cases  cited.  In  the  present  case  the  defendant  was  not  brought 
into  this  district,  nor,  indeed,  into  any  district,  for,  as  we  have 
seen,  he  himself  brought  his  vessel  to  Brooklyn.  Neither  was  he 
found  in  this  district,  for,  as  we  have  seen,  he  was  arrested  on  his 
vessel  in  Brooklyn.  It  follows  therefore  that  he  was  neither  found 
nor  brought  into  this  district,  and,  unless  a  further  consideration, 
now  to  be  mentioned,  prevails,  he  cannot  be  tried  here.^ 

1  Only  a  portion  of  the  case  is  reprinted. — Ed. 


342  Cases  on  Federal  Procedure 

UNDERWOOD  TYPEWRITER  CO.  v.  FOX  TYPEWRITER  CO. 
Circuit  Court,  S.  D.  New  York.     1907. 
158  Fed.  476. 

Ray,  District  Judge.  *  *  *  I  do  not  think  it  necessary  to  allege 
and  show  under  the  statute  referred  to  (Act  March  3,  1897,  c.  395, 
29  Stat.  695  (U.  S.  Comp.  St.  1901,  p.  589)),  in  order  to  confer 
jurisdiction  on  this  court,  that  the  defendant  Fox  Typewriter 
Company,  Limited,  or  its  successor  the  Fox  Typewriter  Company, 
a  corporation,  had  a  regular  and  established  place  of  business  in 
the  Southern  District  of  New  York  at  the  time  when  the  acts  of 
infringement  were  committed  in  such  district.  Jurisdiction  is  con- 
ferred and  obtained  if  the  defendant  committed  the  acts  of  in- 
frngement  in  such  district  before  suit  brought,  and  if  when  suit 
was  brought  the  defendant  liable  for  the  infringement  had  a  reg- 
ular and  established  place  of  business  in  the  district.  This  is  the 
plain  reading  of  the  statute,  and  its  plain  purpose.  The  language 
is: 

"That  in  suits  brought  for  the  infringement  of  letters  patent 
the  Circuit  courts  of  the  United  States  shall  have  jurisdiction 
in  law,  or  in  equity,  in  the  district  in  which  the  defendant  is 
an  inhabitant,  or  in  any  district  in  which  the  defendant,  whether 
a  person,  partnership,  or  corporation,  shall  have  committed  acts 
of  infringement  and  have  a  regular  and  established  place  of  busi- 
ness. If  such  suit  is  brought  in  a  district  of  which  the  defend- 
ant is  not  an  inhabitant,  but  in  which  such  defendant  has  a  regular 
and  established  place  of  business,  service     *     *     *     may  be  made. 

The  words  "shall  have  committed"  and  "have  a  regular,"  etc., 
are  significant.  The  fii-st  relates  to  the  past — to  a  time  prior  to 
bringing  the  suit — the  last,  to  the  time  of  bringing  the  suit.  The 
existence  of  a  place  of  business  in  the  district  where  suit  is  brought 
at  the  time  of  the  commission  of  the  acts  of  infringement  is  en- 
tirely immaterial.  If  a  resident  and  inhabitant  of  one  district 
goes  into  another  and  commits  acts  of  infringement  therein,  hav- 
ing no  regular  and  established  place  of  business  there,  and  there- 
after establishes  a  regular  place  of  business  in  such  district,  and 
has  it  when  sued,  jurisdiction  exists  and  is  obtained  if  the  service 
of  process  be  regular  and  made  in  accordance  with  the  statute. 
Congress  did  not  intend  to  exempt  infringers  living  in  one  district 


District  Courts  343 

from  suit  to  another  where  they  commit  their  unlawful  acts  on 
the  ground  that  when  so  committing  the  acts  they  had  not  estab- 
lished and  did  not  maintain  a  regular  place  of  business  in  such 
district.  It  was  not  intended  to  offer  an  exemption  from  suit  in 
the  district  where  infringement  was  practiced  if  the  wrongdoer 
would  not  establish  and  maintain  a  regular  place  of  business  there 
while  doing  the  acts.  It  did  intend  such  infringers  might  be  sued 
in  such  district  provided  they  had,  at  the  time  of  suit  brought, 
"a  regular  and  established  place  of  business"  in  such  district, 
so  that  lawful  service  could  be  made  in  the  district  on  the  de- 
fendant, or  on  his  agent  engaged  in  conducting  such  business 
there.  Walker  on  Patents  (4th  Ed.)  330,  §389;  Feder  v.  A.  B. 
Fielder  &  Sons  (C.  C),  116  Fed.  378;  Bowers  v.  Atlantic  G.  & 
P.  Co.  (C.  C),  104  Fed.  887,  888;  Westinghouse  E.  &  Mfg.  Co. 
V.  Stanley  E.  Mfg.  Co.  et  al.  (C.  C),  121  Fed.  101;  Chicago  P. 
T.  Co.  V.  Philadelphia  P.  T.  Co.  (C.  C),  118  Fed.  852.  If  the 
defendant  Fox  Typewriter  Company,  Limited,  has  no  existence, 
and  had  none  when  suit  was  brought  and  no  successor  liable  for 
its  acts,  I  do  not  comprehend  how  it  is  in  court,  or  how  any  servicQ 
could  have  been  obtained,  and  a  proper  course  would  have  been 
a  motion  by  the  person  served  to  set  aside  the  service  of  the 
process.^ 


ATKINS  v.  THE  DISINTEGRATING  COMPANY. 

Supreme  Court  of  the  United  States.    1873. 

85  U.  S.  (18  Wallace)  272,  21  L.  Ed.  841. 

Mr.  Justice  Swayne  recapitulated  the  facts  of  the  case  and 
delivered  the  opinion  of  the  court.     *     *     * 

The  prohibition  to  bring  a  "civil  suit"  against  an  inhabitant 
of  the  United  States  in  a  district  other  than  that  whereof  he  is 

1  Only  a  portion   of  the   opinion   is   reprinted. 

Section  48  of  the  Judicial  Code  applies  only  to  defendants  who  are  in- 
habitants of  some  districts  within  the  United  States,  and  does  not  affect 
suits  against  aliens,  which  may  be  brought  in  any  district  where  the  de- 
fendant may  be  found.  United  Shoe  M.  Co.  v.  Duplessis  Independent  Shoe 
M.   Co.,   133   Fed.  930    (1904). 

As  to  waiver  of  right  to  be  sued  in  a  particular  district  in  actions  foi- 
infringement  of  letters  patent,  see  U.  S.  Consol.  Seeded  Eaisin  Co.  v.  Phoenix 
Eaisin  S.  &  P.  Co.,  124  Fed.  234    (1903). 

As  to  the  meaning  of  a  "regular  and  established  place  of  business,"  see 
L.  E.  Waterman  Co.  v.  Parker  Pen  Co.,   100   Fed.   544    (1900). 

As  to  the  district  of  which  a  corporation  is  an  "inhabitant"  under  section 
48  of  the  Judicial  Code,  see  Waller  v.  Pennsylvania  R.  Co.,  113  Fed.  502, 
503    (1902).— Ed. 


344  Cases  on  Federal  Procedure 

an  inhabitant,  or  in  which  he  shall  be  found,  is  the  hinge  of  the 
controversy  between  these  parties.  The  appellees  maintain  that  a 
cause  of  admiralty  jurisdiction  is  a  ** civil  suit"  within  the  mean- 
ing of  this  prohibition.  The  appellants  maintain  the  contrary. 
Our  views  coincide  with  those  of  the  appellants,  and  we  will  pro- 
ceed to  state  succinctly  the  considerations  which  have  brought 
us  to  this  conclusion. 

It  may  be  admitted  that  an  admiralty  case  is  a  civil  suit  in 
the  general  sense  of  that  phrase.  But  that  is  not  the  question 
before  us.  It  is  whether  that  is  the  meaning  of  the  phrase  as 
used  in  this  section.  The  intention  of  the  lawmaker  constitutes 
the  law.^  A  thing  may  be  within  the  letter  of  a  statute  and 
within  its  meaning,  or  within  its  meaning  though  not  within  its 
letter.^  In  cases  admitting  of  doubt  the  intention  of  the  law- 
maker is  to  be  sought  in  the  entire  context  of  the  section — stat- 
utes or  series  of  statutes  in  pari  materia.^ 

The  general  language  found  in  one  place,  may  be  restricted  in 
its  effect  to  the  particular  expressions  employed  in  another,  if 
such,  upon  a  careful  examination  of  the  subject,  appears  to  have 
been  the  intent  of  the  enactment.* 

The  first  paragraph  of  the  eleventh  section  defines  the  juris- 
diction of  the  Circuit  Court  as  extending  to  "all  suits  of  a  civil 
nature,  at  common  law  or  in  equity,  where,"  etc.  The  criminal 
jurisdiction  of  the  Circuit  Court  is  next  defined.  Then  follows 
the  provision  that  no  one  shall  be  arrested  in  one  district  for  trial 
in  another  "in  a  civil  action"  before  a  Circuit  or  District  Court, 
and  next  the  prohibition  here  in  question. 

Construing  this  section,  down  to  the  second  prohibition,  inclu- 
sive, by  its  own  light  alone,  we  cannot  doubt  that  hy  the  phrase 
"civil  suit,"  mentioned  in  this  prohibition,  is  meant  a  suit  within 
the  category  of  "all  suits  of  a  civil  nature  at  common  law  or  in 
equity,"  with  which  the  section  deals  at  the  outset.  This  view 
derives  further  support  from  the  ninth,  twenty-first,  and  twenty- 
second  sections  of  tin.'  act.     The  ninlh  section  gives  to  the  District 

1  United  States  v.   Freeman,  3   Howard   56.''.. 

2  Slater  v.  Cave,  .'5  Oliio  State  85;  7  Bacon's  Abridgment,  title  Statutes, 
1,  2,  3,  5. 

3  Pattorson  v.  Winn,  11  Wheaton  389;  Dubois  v.  McLean,  4  McLean  489, 
I  (!ooley'H  Hlackstone  59;  Doc  v.  Brandling,  7  Barnowall  &  Cresswell  643; 
Stouel  V.  Zouch,   1   Plowden  365. 

4  Brewer  v.  Blongher,  14  Peters  198,  199;  Miller  v.  Salomons,  7  Ex- 
<hf'f|iier,  546;  Hnmo  case  in  error,  8  Id.  778;  Waiigh  v.  Middleton,  lb.  356, 
357. 


District  Courts  345 

Court  its  admiralty  jurisdiction,  its  common-law  jurisdiction,  and 
its  criminal  jurisdiction.  With  reference  to  that  first  named,  the 
language  is  "of  all  civil  causes  of  admiralty  and  maritime  juris- 
diction." As  to  the  second,  it  is  "of  all  suits  at  common  law,"  etc. 
The  twenty-first  section  allows  appeals  from  the  District  to  the 
Circuit  Court  "in  causes  of  admiralty  and  maritime  jurisdiction 
where  the  matter  in  dispute  exceeds  the  sum  of  three  hundred 
dollars."  The  twenty-second  section  provides  "that  final  decrees 
and  judgments  in  civil  actions,"  where  the  matter  in  dispute  ex- 
ceeds fifty  dollars,  may  be  reviewed  in  the  Circuit  Court  upon 
error.  The  distinction  is  thus  made  between  admiralty  and  other 
civil  actions,  and  the  terms  "causes  of  admiralty  and  maritime 
jurisdiction,"  are  applied  to  the  former,  and  the  phrases  "civil 
actions"  and  "suits  at  common  law"  to  the  latter. 

We  think  the  conclusion  is  inevitable  that  the  terms  civil  suit, 
in  the  eleventh,  and  civil  actions,  in  the  twenty-second  section, 
were  intended  to  mean  the  same  thing.  The  meaning  of  the  phrase 
employed  in  the  latter  admits  of  no  doubt.  The  language  there 
is  ' '  civil  actions, ' '  and  it  is  used  to  distinguish  them  from  ' '  causes 
of  admiralty  and  maritime  jurisdiction,"  provided  for  in  the 
preceding  section.  The  twenty-first  and  twenty-second  sections 
are  in  pari  materia  with  the  eleventh,  and  throw  back  a  strong 
light  upon  the  question  arising  under  the  latter.  We  think  it 
dispels  all  darkness  and  doubt  if  any  could  otherwise  exist  upon 
the  subject.^ 


SMITH  V.  LYON. 

Supreme  Court  of  the  United  States.    1890. 

133  U.  S.  315, 10  S.  Ct.  303,  33  L.  Ed.  635. 

This  action  was  dismissed  by  the  court  below  for  want  of  juris- 
diction, to  which  judgment  the  plaintiffs  below  sued  out  this  writ 
of  error.    The  case  is  stated  in  the  opinion. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  the  Circuit  Court  for  the  Eastern  Dis- 
trict of  Missouri.    It  was  dismissed  in  that  court  for  want  of  juris- 

6  Only  a  portion  of  the  opinion  is  reprinted. — Ed. 


346  Cases  on  Federal  Procedure 

diction,  and  judgment  rendered  accordingly;  to  which  this  writ 
of  error  is  prosecuted.     38  Fed.  Rep.  53. 

The  facts  out  of  which  the  controversy  arises  are  found  in  the 
first  few  lines  of  plaintiffs'  petition.  In  this  they  allege  that  they 
are  partners  doing  business  under  the  firm  name  of  C.  H.  Smith  & 
Co. ;  that  the  said  C.  H.  Smith  is  a  resident  and  citizen  of  St.  Louis, 
in  the  State  of  Missouri,  and  Benjamin  Fordyce  is  a  resident  and 
citizen  of  Hot  Springs,  in  the  State  of  Arkansas;  and  that  the 
defendant  0.  T.  Lyon  is  a  resident  and  citizen  of  Sherman,  in  the 
State  of  Texas. 

To  this  petition,  which  set  out  a  cause  of  action  otherwise  suffi- 
cient, the  defendant  Lyon,  who  was  served  with  the  summons  in 
the  Eastern  District  of  Missouri,  filed  a  plea  to  the  jurisdiction  of 
the  court  appearing  by  attorney  especially  for  that  purpose,  the 
ground  of  which  is,  that  one  of  the  plaintiffs,  Benjamin  Fordyee, 
is  and  was  at  the  time  of  the  institution  of  this  suit  a  resident  and 
citizen  of  Hot  Springs,  in  the  State  of  Arkansas,  and  the  defend- 
ant was  a  resident  and  citizen  of  Sherman,  in  the  State  of  Texas, 
and  that  the  suit  was  not  brought  in  the  district  of  the  residence 
of  either  the  plaintiff  Fordyce,  or  of  the  defendant. 

The  motion  to  dismiss  for  want  of  jurisdiction  was  sustained  by 
the  Circuit  Court,  and  the  soundness  of  that  decision  is  the  ques- 
tion which  we  are  called  upon  to  decide. 

The  decision  of  it  depends  upon  the  proper  construction  of  the 
first  section  of  the  Act  of  Congress  approved  March  3,  1887,  24 
Stat.  552,  c.  373,  as  amended  by  the  Act  of  August  13,  1888,  25 
Stat.  433,  c.  866.  That  statute  professes  to  be  an  act  to  amend  the 
Act  of  March  3,  1875,  and  its  object  is  "to  determine  the  jurisdic- 
tion of  Circuit  Courts  of  the  United  States,  and  to  regulate  the 
removal  of  causes  from  the  State  Courts,  and  for  other  purposes." 
The  first  section  of  the  act  confers  upon  the  Circuit  Courts  of  the 
United  States  original  cognizance,  concurrent  with  the  courts  of 
the  several  States,  of  all  suits  of  a  civil  nature  at  common  law  or 
in  equity,  where  the  matter  in  dispute  exceeds  the  sum  of  $2,000, 
and  arising  under  the  Constitution  or  laws  of  the  United  States  or 
treaties  made  or  which  shall  be  made  under  their  authority.  It 
then  proceeds  to  establish  a  jurisdiction  in  reference  to  the  parties 
to  the  suit.  These  are  controversies  in  which  the  United  States  are 
plaintiffs,  or  in  which  there  shall  be  a  controversy  between  citizens 
of  different  Slates,  with  a  like  limitation  upon  the  amount  in  dis- 
pute, and  other  controversies  between  parties  which  are  described 
in  the  statute.     This  first  clause  of  tlie  act  described  the  jurisdic- 


**■  District  Courts  347 

tion  common  to  all  the  Circuit  Courts  of  the  United  States,  as 
regards  the  subject  matter  of  the  suit,  and  as  regards  the  character 
of  the  parties  who  by  reason  of  such  character  may,  either  as  plain- 
tiffs or  defendants,  sustain  suits  in  Circuit  Courts.  But  the  next 
sentence  in  the  same  section  undertakes  to  define  the  jurisdiction 
of  each  one  of  the  several  Circuit  Courts  of  the  United  States  with 
reference  to  its  territorial  limits,  and  this  clause  declares  *^hat  no 
person  shall  be  arrested  in  one  district  for  trial  in  another  in  any 
civil  action  before  a  Circuit  or  District  Court;  and  no  civil  suit 
shall  be  brought  before  either  of  said  courts  against  any  person  by 
any  original  process  or  proceeding  in  any  other  district  than  that 
whereof  he  is  an  inhabitant,  but  where  the  jurisdiction  is  founded 
only  on  the  fact  that  the  action  is  between  citizens  of  different 
States,  suit  shall  be  brought  only  in  the  district  of  the  residence 
of  either  the  plaintiff  or  the  defendant." 

In  the  case  before  us,  one  of  the  plaintiffs  is  a  citizen  of  the 
State  where  the  suit  is  brought,  namely,  the  State  of  Missouri,  and 
the  defendant  is  a  citizen  of  the  State  of  Texas.  But  one  of  the 
plaintiffs  is  a  citizen  of  the  State  of  Arkansas.  The  suit,  so  far  as 
he  is  concerned,  is  not  brought  in  the  State  of  which  he  is  a  citizen. 
Neither  as  plaintiff  nor  as  defendant  is  he  a  citizen  of  the  district 
where  the  suit  is  brought.  The  argument  in  support  of  the  error 
assigned  is  that  it  is  sufficient  if  the  suit  is  brought  in  a  State 
where  one  of  the  defendants  or  one  of  the  plaintiffs  is  a  citizen. 
This  would  be  true  if  there  were  but  one  plaintiff  or  one  defendant. 
But  the  statute  makes  no  provision,  in  terms,  for  the  case  of  two 
defendants  or  two  plaintiffs  who  are  citizens  of  different  States. 
In  the  present  case,  there  being  two  plaintiffs,  citizens  of  different 
States,  there  does  not  seem  to  be,  in  the  language  of  the  statute, 
any  provision  that  both  plaintiff's  may  unite  in  one  suit  in  a  State 
of  which  either  of  them  is  a  citizen.     *     *     * 

We  do  not  think,  in  the  light  of  this  long-continued  construction 
of  the  statute  by  this  court  during  a  period  of  nearly  a  hundred 
years,  in  which  the  statute  has  been  the  subject  of  renewed  legis- 
lative consideration  and  of  many  changes,  it  has  always  retained 
the  language  which  was  construed  in  the  case  of  Strawbridge  v. 
Curtiss,  that  we  are  at  liberty  to  give  that  language  a  new  mean- 
ing, when  it  is  used  in  reference  to  the  same  subject  matter.  It 
is  not  readily  to  be  conceived  that  the  Congress  of  the  United 
States,  in  a  statute  mainly  designed  for  the  purpose  of  restricting 
the  jurisdiction  of  the  Circuit  Courts  of  the  United  States,  using 
language  which  has  been  construed  in  a  uniform  manner  for  over 


348  Cases  on  Federal  Procedure 

ninety  years  by  this  court,  intended  that  that  language  should  be 
given  a  construction  which  would  enlarge  the  jurisdiction  of  those 
courts,  and  which  would  be  directly  contrary  to  that  heretofore 
placed  upon  by  this  court. 

These   considerations   require  the  affirmance  of  the   judgment 
of  the  Circuit  Court,  and  it  is  so  ordered.^ 


UNITED  STATES  v.   STANDARD  OIL  CO. 

Circuit  Court,  E.  B.  Missouri,  E.  D.     1907. 

152  Fed.  290. 

Sanborn,  Circuit  Judge. —  *  *  *  ggetion  4  of  the  Act  of 
July  2, 1890,  confers  upon  the  several  Circuit  Courts  of  the  United 
States  jurisdiction  to  restrain  violations  of  its  provisions,  and  sec- 
tion 5  reads  in  this  way: 

"Whenever  it  shall  appear  to  the  court  before  which  any  pro- 
ceeding under  section  four  of  this  act  may  be  pending  that  the 
ends  of  justice  require  that  other  parties  should  be  brought  before 
the  court,  the  court  may  cause  them  to  be  summoned,  whether  they 
reside  in  the  district  in  which  the  court  is  held  or  not ;  and  sub- 
poenas to  that  end  may  be  served  in  any  district  by  the  marshal 
thereof." 

The  individual  defendants,  the  Standard  Oil  Companj^  of  New 
Jersey,  and  nearly  all  the  subsidiary  corporations,  except  the 
Waters-Pierce  Oil  Company,  were  not  inhabitants  of,  and  could 
not  be  found  in,  this  district.  After  the  filing  of  the  bill,  and  upon 
the  presentation  by  the  complainant  of  a  petition  which  disclosed 
this  fact,  the  court  ordered  that  the  non-resident  defendants  should 
be  brought  in,  and  that  subpoenas  should  be  served  upon  them  in 
the  districts  in  which  they  resided.  Certain  of  these  defendants 
have  appeared  specially,  and  moved  the  court  to  vacate  this  order 
and  to  quash  the  service  of  the  subpoenas  upon  them,  upon  the 
grounds  tluil  the  court  was  without  jurisdiction  to  make  the  order, 

1  Only  a   j)f)rtioii   ol'   the  opinion   is  roprintod. 

Compare  Crirprntcr  v.  Tall.ot,  ;{;{  Fed.  r^M,  n.SS  (1888);  Rawitzor  v.  Wyatt, 
40   Fed.   609    (1889). 

Ah  to  who  m.-iy  ohjrct  to  tlio  fjict  that  there  is  an  inipropor  Joinder  of  the 
parties,  see  Hniith   v.' Atciiison,  T.  &  S.    F.   \i.  Co.,  fil   Fed.   1,  2   (1894).— Ed. 


District  Courts  349 

that  it  was  prematurely  and  irregularly  made,  and  that  the  ends 
of  justice  did  not  require  that  the  non-resident  defendants  should 
be  brought  into  this  suit. 

The  judicial  power  of  the  United  States  is  vested  by  the  Consti- 
tution in  the  Supreme  Court,  "and  in  such  inferior  courts  as  the 
Congress  may  from  time  to  time  ordain  and  establish."  This 
power  extends  "to  all  cases  in  law  an  equity  arising  under  this 
Constitution  and  the  laws  of  the  United  States, — to  controversies 
to  which  the  United  States  shall  be  a  party,"  and  to  other  cases 
not  material  to  the  issues  here  presented.  Article  3,  §§1,  2.  This 
is  a  case  in  equity  arising  under  a  law  of  the  United  States.  The 
United  States  is  a  party  to  the  controversy  which  it  involves ;  and 
the  Congress  had  ample  authority,  under  these  provisions  of  the 
Constitution,  to  confer  upon  this  or  upon  any  inferior  court  of  the 
nation  jurisdiction  of  this  suit  and  power  to  summon  the  proper 
parties  to  it,  wherever  residing  or  found  within  the  dominion  of 
the  nation,  to  a  hearing  and  decree  herein.  U.  S.  v.  Union  Pac.  R. 
Co.,  98  U.  S.  569,  604,  25  L.  Ed.  143.  As  the  Congress  had  the 
authority  to  enact  that  in  this,  and  other  cases  of  this  class,  any  Cir- 
cuit Court  in  which  the  United  States  might  bring  its  suit  might,  by 
process  served  anywhere  in  the  United  States,  lawfully  bring  into 
it  all  the  parties  necessary  to  the  adjudication  of  the  controversies 
it  involved,  they  had  authority  to  empower  such  a  court  to  bring 
in  these  parties  whenever  in  its  opinion  the  ends  of  justice  should 
require  such  action,  because  the  whole  is  greater  than  any  of  its 
parts  and  includes  them  all. 

The  inhibition  of  section  1  of  the  Judiciary  Acts  of  March  3, 
1887,  c.  373,  24  Stat.  552,  and  Aug.  13,  1888,  e.  866,  §  1,  25  Stat. 
433  (U.  S.  Comp.  St.  1901,  p.  508),  that  "no  civil  suit  shall  be 
brought  before  either  of  said  courts  (the  Circuit  and  District 
Courts)  against  any  person  by  any  original  process  or  proceeding 
in  any  other  district  than  that  whereof  he  is  an  inhabitant,"  does 
not  restrict  the  jurisdiction  of  this  court,  nor  its  power  to  bring 
in  parties  without  its  district,  in  the  case  under  consideration,  be- 
cause that  provision  is  inapplicable  to  instances  in  which  exclusive 
jurisdiction  over  particular  cases,  or  classes  of  cases,  is  created  and 
conferred  upon  the  courts  of  the  United  States  by  special  Acts 
of  Congress.  U.  S.  v.  Mooney,  115  U.  S.  106,  6  Sup.  Ct.  304,  29  L. 
Ed.  550;  Van  Patten  v.  Chicago,  Milwaukee  &  St.  Paul  R.  Co. 
(C.  C),  74  Fed.  981,  985-988;  Atkins  v.  Disintegrating  Co.,  18 
Wall.  272,  21  L.  Ed.  841 ;  In  re  Louisville  Underwriters,  134  U.  S. 
488,  493,  10  Sup.  Ct.  587,  33  L.  Ed.  991 ;  In  re  Hohorst,  150  U.  S. 


350  Cases  on  Federal  Procedure     ' 

653,  662,  14  Sup.  Ct.  221,  37  L.  Ed.  1211.  There  can  therefore  be 
no  doubt  that  Congress  had  the  authority  to  confer  jurisdiction 
of  this  case  upon  this  court,  nor  that  they  have  lawfully  exercised 
that  authority ;  and  the  only  question  is  whether  or  not  this  court 
exceeded  the  power  thus  conferred  upon  it  when  it  summoned  the 
non-resident  defendants,^ 


In  re  HOHORST. 

Supreme  Court  of  the  United  States.     1893. 

150  V.  S.  653,  14  Sup.  Ct.  221,  37  L.  Ed.  1211. 

Mr.  Justice  Gray,  after  stating  the  case,  delivered  the  opinion 
of  the  court.     *     *     * 

By  the  Act  of  March  3,  1887,  c.  373,  §  1,  as  corrected  by  the 
Act  of  August  13,  1888,  c.  866,  "the  Circuit  Courts  of  the  United 
States  shall  have  original  cognizance,  concurrent  with  the  courts 
of  the  several  States,  of  all  suits  of  a  civil  nature,  at  common  law 
or  in  equity,  where  the  matter  in  dispute  exceeds,  exclusive  of 
interest  and  costs,  the  sum  or  value  of  two  thousand  dollars,  and 
arising  under  the  Constitution  or  laws  of  the  United  States,  or 
treaties  made,  or  which  shall  be  made,  under  their  authority,  or 
in  which  controversy  the  United  States  are  plaintiffs  or  petitioners, 
or  in  which  there  shall  be  a  controversy  between  citizens  of  differ- 
ent States,"  "or  a  controversy  between  citizens  of  the  same  State 
claiming  lands  under  grants  of  different  States,  or  a  controversy 
between  citizens  of  a  State  and  foreign  States,  citizens  or  sub- 
jects."   25  Stat.  552;  25  Stat.  434.     *     *     * 

The  question  then  arises  how  far  the  jurisdiction  thus  conferred 
over  this  last  class  of  controversies,  and  especially  over  a  suit  by 
a  citizen  of  a  State  against  a  foroign  citizen  or  subject,  is  affected 
by  the  subsequent  provisions  of  the  same  section,  by  which,  after 
other  regulations  of  the  jurisdiction  of  the  Circuit  Courts  and 
District  Courts  of  the  United  States,  it  is  enacted  that  "no  civil 
suit  shall  be  brought  before  either  of  said  courts  against  any  per- 
son by  any  original  process  or  proceeding  in  any  other  district  than 

1  Only   a   jiorlion   of   tlic  opinion   is   ro|)riiif('(i. 

Hfc  iiIho,  VVogan  Bros.  v.  American  .Sugar  Kclining  Co.,  215  Fed.  273 
(1914).— Ed. 


District  Courts  351 

that  whereof  he  is  an  inhabitant ;  but,  where  the  jurisdiction  is 
founded  only  on  the  fact  that  the  action  is  between  citizens  of 
different  States,  suit  shall  be  brought  only  in  the  district  of  the 
residence  of  either  the  plaintiff  or  the  defendant." 

Of  these  two  provisions,  the  latter  relates  only  to  suits  between 
citizens  of  different  States  of  the  Union,  and  is  therefore  mani- 
festly inapplicable  to  a  suit  brought  by  a  citizen  of  one  of  these 
States  against  an  alien.  And  the  former  of  the  two  provisions 
cannot  reasonably  be  construed  to  apply  to  such  a  suit. 

The  words  of  that  provision,  as  it  now  stands  upon  the  statute 
book,  are  that  "no  civil  suit  shall  be  brought  before  either  of  said 
courts  against  any  person  by  an  original  process  or  proceeding 
in  any  other  district  than  that  whereof  he  is  an  inhabitant."  These 
words  evidently  look  to  those  persons,  and  those  persons  only,  who 
are  inhabitants  of  some  district  within  the  United  States.  Their 
object  is  to  distribute  among  the  particular  districts  the  general 
jurisdiction  fully  and  clearly  granted  in  the  earlier  part  of  the  same 
section;  and  not  to  wholly  annul  or  defeat  that  jurisdiction  over 
any  case  comprehended  in  the  grant.  To  construe  the  provision 
as  applicable  to  all  suits  between  a  citizen  and  an  alien  would  leave 
the  courts  of  the  United  States  open  to  aliens  against  citizens,  and 
close  them  to  citizens  against  aliens.  Such  a  construction  is  not 
required  by  the  language  of  the  provision,  and  would  be  incon- 
sistent with  the  general  intent  of  the  section  as  whole.^ 


GALVESTON,  Etc.,  RAILWAY  v.  GONZALES. 

Supreme  Court  of  the  United  States.     1894. 
151  U.  S,  496,  14  S.  Ct.  401,  38  L.  Ed.  248. 

Mr,  Justice  Brown,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

1  Only  a  portion  of  the  opinion  is  reprinted. 

In  Hill  V.  Great  Northern  Ey.  Co.,  197  Fed.  488  (1912),  Bourquin,  Dis- 
trict Judge,  said: 

"(1)  While  aliens  are  not  within  that  provision  of  the  statutes  which  pro- 
hibits bringing  suit  in  any  Federal  Court  save  that  in  the  district  whereof 
defendant  is  an  inhabitant,  so  far  as  suits  against  -"liens  are  concerned,  they 
are  within  it  so  far  as  suits  by  aliens  are  concerred.  That  is,  an  alien  may 
be  sued  wherever  valid  service  of  process  may  be  made  on  him,  but  he  can 
sue  a  citizen  only  in  the  district  whereof  the  latter  is  an  inhabitant." — Ed. 


352  Cases  on  Federal  Procedure 

This  case  raises  the  question  whether  a  railway  company,  incor- 
porated under  the  laws  of  a  certain  State,  and  having  its  princi- 
pal offices  within  one  district  of  such  State,  can  be  said  to  be  an 
inhabitant  of  another  district  of  the  same  State,  through  which  it 
operates  its  line  of  road  and  in  which  it  maintains  freight  and 
ticket  offices  and  depots. 

By  section  1  of  the  Act  of  August  13,  1888,  c.  866,  25  Stat.  433, 
revising  the  jurisdiction  of  the  Circuit  courts,  it  is  enacted  that 
"no  civil  suit  shall  be  brought  before  either  of  said  courts  against 
any  person  by  any  original  process  or  proceeding  in  any  other  dis- 
trict than  that  whereof  he  is  an  inhabitant,  but  where  the  juris- 
diction is  founded  only  on  the  fact  that  the  action  is  between  citi- 
zens of  different  States,  suit  shall  be  brought  only  in  the  district 
of  the  residence  of  either  the  plaintiff  or  the  defendant";  and  by 
Rev.  Stat.  §  740,  "when  a  State  contains  more  than  one  district, 
every  suit  not  of  a  local  nature,  in  the  Circuit  or  District  courts 
thereof,  against  a  single  defendant,  inhabitant  of  such  State,  must 
be  brought  in  the  district  where  he  resides."  The  above  provision 
of  the  Act  of  1888  is  manifestly  a  restriction  upon  the  jurisdic- 
tion conferred  by  the  Act  of  March  3,  1875,  c.  137,  18  Stat.  470, 
which  contained  a  similar  provision,  but  with  the  additional  privi- 
lege of  bringing  such  suit  within  any  district  "in  which  he,"  the 
defendant,  "shall  be  found  at  the  tme  of  serving  such  process  or 
commencing  such  proceedings." 

It  will  be  noticed  that  in  this  as  well  as  in  prior  acts  regulating 
the  jurisdiction  of  the  Circuit  courts,  a  distinction  is  made  be- 
tween citizens  of  States  and  inhabitants  of  districts.  This  dis- 
tinction has  been  carefuly  observed  in  all  the  principal  adjudica- 
tions upon  the  construction  of  these  statutes,  and,  for  the  purpose 
of  determining  the  habitancy  of  a  railway  corporation,  it  is  perti- 
nent to  refer  to  some  of  these  cases.  In  one  of  the  earliest,  viz., 
Picquet  v.  Swan,  5  Mason  35,  46,  a  suit  was  begun  by  trustee 
process  or  writ  of  garnishment  sued  out  by  an  alien  against  a  de- 
fendant, described  as  now  commorant  of  the  City  of  Paris  in  thrt 
Kingdom  of  France,  of  the  City  of  Boston  in  the  Commonwealth 
of  Massachusetts,  one  of  the  United  States  of  America,  and  a  citi- 
zen of  llie  said  Uiiilcd  States.  "The  process  was  served  by  the 
attachment  of  a  lot  of  land  in  Boston  belonging  to  the  defendant, 
and  by  summoning  his  agent  to  ai)pear  and  sliow  cause.  The  de- 
fendant never  appeared  as  a  party  to  the  suit;  and  it  was  con- 
tended tlial  the  plaintiff  was  entitled  to  consider  him  in  default, 
and  to  have  jndgnient.    It  was  held,  however,  by  Mr.  Justice  Story, 


District  Courts  353 

that  where  a  party  defendant  was  a  citizen  of  the  United  States, 
but  resident  in  a  foreign  country,  having  no  inhabitancy  in  any 
State  of  the  Union,  the  Circuit  courts  had  no  jurisdiction  over 
liim  in  a  suit  brought  by  an  alien,  though  his  property  were  at- 
tached in  the  district.  The  case  involved  the  construction  of  that 
clause  of  the  eleventh  section  of  the  Judiciary  Act  of  September 
24,  1789,  c.  20,  1  Stat.  73,  78,  which  provided  that  no  civil  suit 
shall  be  brought  before  either  of  said  courts  against  an  inhabitant 
of  the  United  States,  by  any  original  process  in  any  other  district 
than  that  whereof  he  is  an  inhabitant,  or  in  which  he  shall  be 
found  at  the  time  of  serving  the  writ."  It  will  be  noticed  that 
the  words  used  are  ''inhabitant  of  the  United  States,"  not  "inhabi- 
tant of  a  district,"  and,  in  speaking  of  these  words,  Mr.  Justice 
Story  said:  "I  lay  no  particular  stress  upon  the  word  'inhabi- 
tant,' and  deem  it  a  mere  equivalent  description  of  'citizen'  and 
'alien'  in  the  general  clause  conferring  jurisdiction  over  parties." 
That  he  meant  the  word  "inhabitant"  as  "inhabitant  of  the  United 
States"  is  evident  from  what  follows:  "A  person  might  be  an 
inhabitant,  without  being  a  citizen ;  and  a  citizen  might  not  be  an 
inhabitant,  though  he  retain  his  citizenship.  Alienage  or  citizen- 
ship is  one  thing;  and  inhabitancy,  by  which  I  understand  local 
residence,  animo  manendi,  quite  another.  I  read,  then,  the  clause, 
thus:  'No  civil  suit  shall  be  brought  before  either  of  said  courts 
against  an  alien  or  a  citizen,  by  any  original  process,  in  any  other 
district  than  that  whereof  he  is  an  inhabitant,  or  in  which  he  shall 
be  found,  at  the  time  of  serving  the  writ. '  It  cannot  be  presumed 
that  Congress  meant  to  say,  that  if  an  alien  or  a  citizen  were  not 
an  inhabitant  of,  or  commorant  in,  the  United  States,  a  suit  might 
be  maintained  against  him  in  any  district,  and  process  served 
abroad  upon  him,  or  judgment  given  against  him  without  notice 
6r  process  served  upon  him."  There  is  nothing  here  which  indi- 
cates that  Mr.  Justice  Story  confounded  citizenship  of  a  State 
with  inhabitancy  of  a  district. 

In  Shaw  v,  Quincy  Mining  Company,  145  U.  S.  444,  a  citizen  of 
Massachusetts  sought  to  maintain  a  bill  in  equity  in  the  Circuit 
Court  for  the  Southern  District  of  New  York  against  the  Quincy 
Mining  Company,  a  corporation  organized  under  the  laws  of  Mich- 
igan, and  having  a  usual  place  of  business  in  the  City  of  New  York, 
and  the  question  arose  whether  the  court  had  jurisdiction  over 
such  a  suit.  It  was  held  that  it  did  not.  In  the  opinion  of  the 
court  it  was  said  that  the  word  "inhabitant"  in  the  Act  of  1789 
was  apparently  used,  not  in  any  larger  meaning  than  "citizen," 
Wlieaton  C.  F.  P.— 23 


354  Cases  on  Federal  Procedure 

but  to  avoid  the  incongruity  of  speaking  of  a  citizen  of  anything 
less  than  a  State,  when  the  intention  was  to  cover  not  only  a  dis- 
trict which  included  a  whole  State,  but  also  two  districts  in  one 
State. 

In  construing  the  Acts  of  1887  and  1888  it  was  held  that  they 
could  not  be  considered  as  giving  jurisdiction  to  a  Circuit  Court 
held  in  a  State  of  which  neither  party  was  a  citizen,  and  that  "in 
the  case  of  a  corporation,  the  reasons  are,  to  say  the  least,  quite 
as  strong  for  holding  that  it  can  sue  and  be  sued  only  in  the  State 
and  district  in  which  it  has  been  incorporated,  or  in  the  State  of 
which  the  other  party  is  a  citizen."  It  was  further  held  that  the 
domicil,  the  home,  the  habitat,  the  residence,  the  citizenship  of  a 
corporation,  could  only  be  in  the  State  by  which  it  was  created, 
although  it  might  do  business  in  other  States  whose  laws  permitted 
it;  and  it  was  finally  decided  that  under  these  acts  of  Congress 
''a  corporation  incorporated  in  one  State  only,  cannot  be  compelled 
to  answer,  in  a  Circuit  Court  of  the  United  States  held  in  another 
State  in  which  it  has  a  usual  place  of  business,  to  a  civil  suit,  at 
law  or  in  equit}^  brought  by  a  citizen  of  a  different  State. "    *    *    * 

An  individual  is  almost  universally  held  to  be  an  inhabitant  of 
the  place  in  which  he  dwells,  and  though  he  do  business  for  a  long 
time  in  another  place,  he  will  not  be  regarded  as  changing  his 
domicil  so  long  as  the  animus  revertendi  continues.  Thus  in  Jopp 
v.  Wood,  34  Bcavan  88 ;  S.  C.  4  De  G.,  J.  &  S.  616,  it  was  held 
that  a  Scotchman  engaged  in  business  in  India  for  twenty-five 
years  did  not  thereby  change  his  domicil.  And  in  In  re  Capde- 
vielle,  2  H.  &  C.  985,  it  was  simihirly  held  with  regard  to  a  French- 
man who  had  resided  and  engaged  in  business  in  England  for 
twenty-nine  years.  In  the  case  of  a  corporation  the  question  of 
inhabitancy  must  be  determined,  not  l)y  the  residence  of  any  par- 
ticular officer,  but  l)y  the  pi-iii('i])al  offices  of  the  corporation,  where 
its  books  are  kept  and  its  corporate  business  is  transacted,  even 
tliough  it  may  transact  its  most  imjjortant  business  in  another 
I)lace.  It  is  but  a  corollary  of  the  proposition  laid  down  in  the 
three  case.s  above  referred  to,^  that  if  the  corporation  be  created 
l)y  tlio  laws  of  a  State  in  which  there  are  two  judicial  districts,  it 
should  be  considered  an  inha))ilaiit  of  that  district  in  which  its 
general  offices  are  situated,  atid  in  which  its  general  business,  as 
distinguished  from-  its  local  business,  is  done.     *     *     * 

There  are  doubtless   reasons   of  convenience   for  saying  that   a 

1  The  (liNciiHHion  of  these  cases  is  omitted,  only  a  portion  of"  the  opinion 
being    rcjjrintfil. — Eii. 


District  Courts  355 

corporation  should  be  considered  an  inhabitant  of  every  district  in 
which  it  does  business,  and  so  the  statutes  of  the  several  States 
generally  provide;  but  the  law^  contemplates  that  every  person  or 
corporation  shall  have  but  one  domicil,  and  in  the  case  of  the  latter, 
it  shall  be  in  that  State  by  whose  laws  it  was  created,  and  in  that 
district  where  its  general  offices  are  located.^ 


THE  CORTES  CO.  v.  THANNHAUSER. 

Circuit  Court,  8.  D.  New  York.     1881. 
9  Fed.  226. 

Blatchford,  C.  J. — The  defendants  in  these  suits  have  brought 
two  suits  at  law  in  this  court  against  the  Cortes  Company  and  one 
suit  at  law  in  this  court  against  Lucius  E,  Chittenden  and  others 
to  recover  sums  of  money  alleged  to  be  due.  The  above  are  suits 
in  equity.  The  first  of  them  is  brought  to  restrain  the  prosecution 
of  all  three  of  the  suits  at  law,  and  the  second  to  restrain  the  prose- 
cution of  the  suit  at  law  against  Chittenden  and  others.  Properly 
interpreted,  there  is  no  prayer  in  either  of  the  two  bills  for  any 
relief  except  injunctions  to  stay  the  prosecution  of  the  suits  at 
law.  The  ground  stated  for  such  relief  is  that  there  is,  on  the  facts 
alleged  in  the  bills,  and  which  are  alleged  in  the  same  terms  in 
both  bills,  an  equitable  defense  to  all  of  the  suits  at  law,  which, 
if  established  as  alleged,  would  warrant  a  perpetual  stay  of  the 
suits,  but  that  such  defense  cannot  be  availed  of  in  the  suits  at 
law,  \)y  reason  of  the  distinction  maintained  in  the  jurisdiction  of 
the  United  States  between  proceedings  at  law  and  proceedings  in 
equity,  as  shown  by  the  ruling  in  Monte  jo  v.  Owen,  14  Blatchf. 
324,  and  in  the  cases  there  cited. 

The  plaintiffs,  on  filing  the  bills,  and  on  notice  to  the  attorney 
for  the  plaintiffs  in  the  suits  at  law,  now  move  for  an  order  that 
service  of  the  subpoena  to  appear  and  answer  in  these  suits,  or 
such  other  notices  as  the  court  shall  adjudge  proper,  with  a  view 
to  enable  the  court  to  proceed  with  these  suits,  upon  said  attor- 
neys, be  deemed  sufficient  and  proper  service  upon  the  said  plain- 
tiffs as  defendants  in  these  suits,  they  being  either  foreigners  or 

2  But  see  Eiddle  v.  New  York  L.  E.  &  W.  E.  Co.,  39  Fed.  290  (1889); 
United  States  v.  Southern  Pac.  R.  Co.,  49  Fed.  297,  300-301  (1892) ;  Shain- 
wald  V.  Davids,   69  Fed.   704    (1895).— Ed. 


356  Cases  on  Federal  Procedure 

citizens  of   California   and   residents   of   San   Francisco,   in   Cal- 
ifornia. 

It  is  a  well  settled  principle  that  a  bill  filed  on  the  equity  side 
of  a  court,  to  restrain  or  regulate  a  judgment  or  a  suit  at  law  in 
the  same  court,  is  not  an  original  suit,  but  ancillary  and  dependent, 
and  supplementary  merely  to  the  original  suit;  and  that  such  a 
bill  can  be  maintained  in  a  Federal  Court  without  reference  to  the 
citizenship  or  the  residence  of  the  parties.  Logan  v,  Patrick,  5 
Cranch  288 ;  Dunn  v.  Clarke,  8  Pet.  1 ;  Clarke  v.  Mathewson,  12 
Pet.  164;  Freeman  v.  Howe,  24  How.  450,  460.1 


MEXICAN  ORE  CO.  v.  MEXICAN  GUADALUPE  MINING  CO. 

Circuit  Court,  D.  New  Jersey.     1891. 

47  Fed.  351. 

Plaintiff,  who  was  a  resident  of  Missouri,  brought  an  action  in 
the  United  States  Circuit  Court  of  New  Jersey  for  specific  per- 
formance of  defendant  corporation's  contract  to  sell  certain  smelt- 
ing ores  to  him,  and  judgment  was  rendered  as  prayed  therein, 
and  defendant  was  enjoined  from  disposing  of  the  ores  to  any 
other  persons,  and  from  interfering  in  any  manner  with  the  prod- 
uct of  the  mines.  Defendant  disregarded  the  order,  and  its  officers 
and  directors  wore  adjudged  guilty  as  of  a  contempt.  Afterwards 
a  supplemental  bill  was  filed,  alleging  that  one  of  the  directors, 
William  ]\I.  Cayton,  a  resident  of  Pennsylvania,  who  was  not  a 
party  to  the  original  bill,  although  he  was  one  of  those  adjudged 
in  contempt,  had  commenced  legal  proceedings  in  a  foreign  State, 
where  the  mines  were  located,  to  enforce  the  collection  of  a  debt 
due  him  from  the  corporation,  and  had  procured  the  appointment 
of  a  receiver  and  an  order  of  sale  in  satisfaction  of  the  debt,  and 
that  such  proceedings  were  instituted  to  evade  the  decree  for  spe- 
cific pf'rformance  of  the  contract  previously  rendered.*     #     #     * 

1  Only  a  portion  of  tho  opinion   is  reprinted. 

For    a    roininc'lienHivc    TiHt    of    caseH    ilhistratin;!    aiicill.irv    jiirisdietion,    see 
1    FoHtcr   Federal   Practice    (.Ith   Kd.),   IJl^-l.lO.— Ed. 

2  The    facts  are   rcHtated,   as  given   in   the  syllabus,   and   only   a  portion   of 
the    ojiinion    Ih    rcjuinted. — Ed. 


J 


District  Courts  357 

Green,  J.—  *  *  *  The  Act  of  Congress  of  March  3,  1887, 
as  amended  by  the  Act  of  August  13,  1888,  touching  the  jurisdic- 
tion of  this  court,  makes  the  following  provision : 

"No  person  shall  be  arrested  in  one  district  for  trial  in  another 
in  any  civil  action  before  the  Circuit  or  District  Court,  and  no 
civil  suit  shall  be  brought  against  any  person  by  any  original 
process  or  proceeding  in  any  other  district  than  that  whereof  he  is 
an  inhabitant;  but  where  the  jurisdiction  is  founded  on  the  fact 
that  the  action  is  between  citizens  of  different  States,  suit  shall 
be  brought  only  in  the  district  of  the  residence  of  either  the  plain- 
tiff or  the  defendant." 

It  seems  clear  upon  the  mere  reading  of  this  act  that  this  court 
can  have  no  jurisdiction  of  a  suit  commenced  by  a  citizen  of  Mis- 
souri against  a  citizen  of  Pennsylvania.  The  sole  ground  of  juris- 
diction in  this  case  is  that  the  suit  is  between  citizens  of  different 
States.  The  law  is  imperative  that  in  such  case  the  suit  must  be 
brought  either  in  that  district  in  which  the  plaintiff  resides  or  in 
that  district  in  which  the  defendant  resides.  That  condition  is 
not  complied  with,  admittedly,  in  this  cause. 

The  complainant,  to  relieve  itself  of  this  embarrassing  position, 
asserts  that  its  supplemental  bill,  now  filed,  is  ancillary  to  the 
original  bill  heretofore  filed  in  this  court  by  the  party  complain- 
ant, and  that  it  is  a  well  settled  principle  that  the  court  will  retain 
jurisdiction  of  the  cause  under  such  circumstances,  although  the 
parties  that  may  be  brought  in  by  the  ancillary  bill  are  citizens  of 
the  same  district  as  the  complainant.  It  is  undoubtedly  true  that 
where  the  Circuit  Court  of  the  United  States  had  acquired  juris- 
diction of  the  parties  and  of  the  subject-matter  of  a  suit,  and 
ancillary  proceedings  are  instituted,  the  court  will  retain  the 
jurisdiction,  although  the  parties  upon  the  different  sides  of  the 
controversy  are  citizens  of  the  same  State;  but  I  think  that  such 
principle  cannot  be  invoked  in  this  case,  to  enable  the  complain- 
ant to  maintain  this  bill.  This  supplemental  bill  introduces  new 
parties,  and  an  entirely  new  controversy,  not  at  all  necessary  to  be 
decided  in  order  to  have  a  final  decree  on  the  ease  presented  by 
the  original  bill.  That  bill  was  to  compel  the  specific  performance 
of  a  contract.  That  contract  was  for  the  supplying  to  the  com- 
plainant certain  ores,  after  undergoing  a  process  of  manipulation 
and  concentration.  To  carry  out  such  contract,  it  is  apparent  that 
it  is  not  an  absolute  prerequisite  that  these  very  mines  should  be 
in  the  possession  of  the  defendants.  With  or  without  them,  the 
defendants  rest  under  the  obligation  of  their  contract,  and  may 


358  Cases  on  Federal  Procedure 

be  decreed  to  perform  it  literally.  But  the  action  of  Clayton,  so 
deprecated  and  condemned  by  the  complainant,  affects  the  mere 
actual  possessions  of  the  mines  only.  It  does  not  deprive  the  de- 
fendants of  their  ability  to  perform  their  contract.  What  possible 
connection,  then,  can  the  matter  set  up  in  the  supplemental  bill 
have  with  the  object  of  the  original  bill?  How  can  it  be  held  to 
be  necessary  to  decide  whether  or  not  Clayton  is  a  bona  fide  cred- 
itor of  the  defendant  corporations,  and,  as  such,  has  or  has  not  a 
right  to  collect  his  debts  due  from  them  by  a  suit,  in  order  to 
decree  a  specific  performance  of  a  contract  to  which  individually 
he  was  not  a  party,  nor  in  which  was  he,  as  an  individual,  at  all 
interested,  nor  which  can  be  affected  in  any  wise  by  his  action? 
In  Cross  v.  De  Valle,  1  Wall,  14,  it  was  held  that  a  cross-bill  filed 
in  that  cause  on  behalf  of  parties  made  defendants  in  the  original 
bill  against  Cross  was  an  original  bill  in  its  nature,  in  that  it  intro- 
duced an  entirely  new  controversy,  not  necessary  to  be  decided  in 
order  to  have  a  final  decree  on  the  case  presented  by  the  original 
bill ;  and  being,  therefore,  in  the  nature  of  an  original  bill,  such 
cross-bill  could  not  be  sustained  against  Cross,  the  defendant,  he 
being  neither  a  citizen  nor  a  resident  of  the  jurisdiction  in  which 
the  bill  was  filed.  This  case  is  very  similar  to  the  one  before  the 
court.  I  think  that  the  proper  description  of  this  supplemental 
bill  is  that  it  is  an  original  bill,  so  far  as  Clayton  is  concerned. 
If,  then,  this  bill,  although  called  an  "ancillary  bill,"  is  in  its 
nature  an  original  bill,  so  far  as  Clayton  is  concerned  it  is  evident 
that  this  court  is  wholly  without  jurisdiction,  and  no  order  such 
as  prayed  for,  nor  any  other  order,  could  be,  by  it,  made  in  the 
cause. 


COUND  V.  ATCHISON,  T.  &  S.  F.  RY.  CO. 

Circuit  Court,  W.  D.  Texas,  El  Paso  Division.     1909. 

173  Fed.  527. 

Maxey,  District  Judge  (after  stating  the  facts). — As  disclosed 
in  the  statement  of  the  case,  this  suit  was  brought  by  the  plaintiff 
to  recover  damages  of  the  defendant,  in  excess  of  $2,000,  for  in- 
juries which  he  received  during  the  month  of  March,  1909,  in  the 
territory  of  New  Mexico,  while  discharging  his  usual  duties  as 
lirakeman  on  one  of  the  defendant 's  freight  trains.     The  plaintiff 


District  Courts  359 

is  a  citizen  of  Texas,  and  resides  within  the  Western  District  of 
the  State ;  and  the  defendant  is  a  common  carrier  incorporated 
and  organized  under  the  laws  of  the  State  of  Kansas,  and  oper- 
ated a  line  of  railway  from  El  Paso,  Tex.,  through  New  Mexico, 
and  into  the  State  of  its  incorporation.  It  maintains  a  general 
office,  where  its  records  are  kept,  in  the  city  of  Topeka,  Kan.  The 
sole  question  submitted  for  decision  is  whether  this  court  has  juris- 
diction, over  the  protest  of  the  defendant,  to  hear  and  determine 
the  cause.  On  the  one  hand,  it  is  insisted  by  the  plaintiff  that  the 
jurisdiction  obtains  since  diverse  citizenship  exists  and  the  suit  was 
brought  in  the  district  of  his  residence,  where  due  service  was  had 
upon  an  authorized  agent  of  the  defendant.  Upon  the  other,  the 
defendant  contends  that  the  suit  should  be  brought  in  the  district 
of  which  it  is  an  inhabitant,  to  wit,  the  district  of  Kansas,  because 
the  jurisdiction  claimed  is  not  founded  only  on  the  fact  that  the 
suit  is  between  citizens  of  different  States,  but  that  it  is  based 
upon  the  additional  ground  that  the  suit  is  one  arising  under  a 
law  of  the  United  States. 

Which  of  these  divergent  views  is  correct?  To  answer  the  ques- 
tion satisfactorily  it  becomes  necessary  to  ascertain  (1)  whether 
the  suit  arises  under  a  law  of  the  United  States;  and  (2)  whether, 
if  so  arising,  it  was  brought  in  the  proper  district.^     *     *     * 

Attention  will  not  be  directed  to  the  second  query  above  pro- 
pounded. Was  the  present  suit  brought  in  the  proper  district? 
The  general  jurisdiction  of  the  court  is  not  here  involved,  but  the 
question  has  reference  merely  to  the  place  of  suability;  and  in 
this  connection  it  ma^^  not  be  amiss  to  add  that  the  record  does 
not  present  any  question  of  waiver,  on  the  part  of  the  defendant, 
of  its  right  or  privilege  of  being  sued  in  the  district  of  which  it 
is  an  inhabitant.  In  the  first  pleading  filed  by  the  defendant,  a 
protest  is  entered  against  the  court's  jurisdiction,  and  it  is  in- 
sisted that  the  suit  should  be  brought  in  the  district  of  Kansas. 
In  the  examination  of  this  question  no  aid  is  derived  from  the 
Employer's  Liability  Act,  and  recourse  must  be  had  to  the  Act  of 
March  3,  1887,  as  corrected  by  Act  Aug.  13,  1888,  c.  866,  25  Stat. 
433  (U.  S.  Comp.  St.  1901,  p.  508).  The  applicable  part  of  the 
first  section  of  the  act  reads  as  follows: 

"That  the  Circuit  Court  of  the  United  States  shall  have  original 
cognizance,  concurrent  with  the  courts  of  the  several  States,  of 
all  suits  of  a  civil  nature,  at  common  law  or  in  equity,  where  the 

1  Only  that  part  of  the  opinion  dealing  with  the  second  question  is  re- 
printed.— Ed. 


360  Cases  on  Federal  Procedure 

matter  in  dispute  exceeds,  exclusive  of  interest  and  costs,  the  sum 
or  value  of  two  thousand  dollars,  and  arising  under  the  Constitu- 
tion or  laws  of  the  United  States,  or  treaties  made,  or  which  shall 
be  made,  under  their  authority,  or  in  which  controversy  the  United 
States  are  plaintiffs  or  petitioners,  or  in  which  there  shall  be  a 
controversy  between  citizens  of  different  States,  in  which  the  mat- 
ter in  dispute  exceeds,  exclusive  of  interest  and  costs,  the  sum  or 
value  aforesaid,  or  a  controversy  between  citizens  of  the  same 
State  claiming  lands  under  grants  of  different  States,  or  a  con- 
troversy between  citizens  of  a  State  and  foreign  States,  citizens,  or 
subjects,  in  which  the  matter  in  dispute  exceeds,  exclusive  of  in- 
terest and  costs,  the  sum  or  value  aforesaid,  and  shall  have  exclu- 
sive cognizance  of  all  crimes  and  offenses  cognizable  under  the 
authority  of  the  United  States,  except  as  otherwise  provided  by 
law,  and  concurrent  jurisdiction  wdth  the  District  courts  of  the 
crimes  and  offenses  cognizable  by  them.  But  no  person  shall  be 
arrested  in  one  district  for  trial  in  another  in  any  civil  action 
before  a  Circuit  or  District  Court;  and  no  civil  suit  shall  be 
brought  before  either  of  said  courts  against  any  person  by  any 
original  process  or  proceeding  in  any  other  district  than  that 
whereof  he  is  an  inhabitant,  but  where  the  jurisdiction  is  founded 
only  on  the  fact  that  the  action  is  between  citizens  of  different 
States,  suit  shall  be  brought  only  in  the  district  of  the  residence 
of  either  the  plaintiff  or  the  defendant." 

Repeating  the  language  of  the  statute : 

"No  civil  suit  shall  be  brought  before  either  of  said  courts 
against  any  person  by  any  original  process  or  proceeding  in  any 
other  district  than  that  whereof  he  is  an  inhabitant,  but  where  the. 
jurisdiction  is  founded  only  the  fact  that  the  action  is  between 
citizens  of  different  States,  suit  shall  be  brought  only  in  the  dis- 
trict of  the  residence  of  either  the  plaintiff  or  the  defendant." 

That,  for  jurisdictional  purposes,  a  railway  corporation  is  a 
person  and  inhabitant  of  the  State  under  the  laws  of  which  it  is 
incorporated,  has  been  so  definitely  and  conclusively  settled  by 
the  Supreme  Court  that  a  reference  to  authorities  in  support  of 
llie  proposition  is  dcetiied  altogether  useless.  Referring  to  the 
statute,  and  eliminatijig  the  Federal  feature  of  the  present  case, 
the  jurisdiction  of  the  court  would  be  cU'ar  beyond  controversy, 
since  in  that  case  the  jurisdiction  would  be  founded  only  on  the 
fact  of  diverse  citizenship.  I'ut  here  there  appear  two  sources  of 
jurisdiction,  the  one  loniided  on  diverse  citizenship  and  the  other 
ui)on  the  fiiet  that  the  suit  arises  under  a  law  of  the  United  States. 


District  Courts  361 

In  the  former  case,  the  statute  authorizes  suit  to  be  brought  in  the 
district  of  the  residence  of  either  the  plaintiff  or  the  defendant, 
where  the  jurisdiction  is  founded  only  the  fact  that  the  action  is 
between  citizens  of  different  States ;  while,  in  the  latter,  suit  must 
be  brought  in  the  district  of  which  the  defendant  is  an  inhabitant. 
While  the  two  sources  of  jurisdiction  are  combined  in  one  suit, 
can  it  be  said  that  the  jurisdiction  is  founded  only  on  the  fact 
that  the  action  is  between  citizens  of  different  States?  If  the  lan- 
guage of  the  statute  be  given  its  plain  and  ordinary  meaning,  the 
question  propounded  must  unquestionably  be  answered  in  the  neg- 
ative, since  the  jurisdiction  cannot  be  founded  only — that  is,  using 
the  definition  of  Webster  (Web.  Diet.  p.  913),  "utterly,  entirely, 
\\holly" — on  one  ground,  when  another  and  equally  important 
constitutional  ground  is  present  in  the  same  suit.  In  cases  of  this 
kind,  therefore,  the  suit  should  be  brought  in  the  district  of  which 
the  defendant  is  an  inhabitant. 

The  court  recognizes  the  importance  of  the  question  under  dis- 
cussion, and  has  given  it  careful  consideration.  Its  decision  is 
based  upon  the  languages  of  the  statute ;  but  it  is  thought  that  the 
conclusion  announced  is  clearly  supported  by  the  case  of  In  re 
Keasbey  &  Mattison  Co.,  160  U.  S.  221,  16  Sup.  Ct.  273,  40  L.  Ed. 
402.  If  the  court  has  correctly  construed  the  law,  the  competent 
authority  may  readily  make  any  amendment  which  may  be  deemed 
wise  and  proper.  On  the  other  hand,  if  the  construction  of  the 
statute,  applied  by  the  court,  be  erroneous,  the  error  may  be  easily 
corrected  by  the  appellate  tribunals. 

For  the  reasons  assigned,  the  plea  to  the  jurisdiction  should  be 
sustained,  and  the  suit  dismissed  for  the  want  of  jurisdiction ;  and 
it  is  so  ordered. 


CAMP  V.  BONSAL. 

Circuit  Court  of  Appeals,  Fourth  Circuit.    1913. 

203  Fed.  913,  122  CCA.  207. 

Rose,  District  Judge. —  *  *  *  (1)  This  suit  is  a  contro- 
versy between  citizens  of  different  States.  It  is  therefore  one  to 
which  the  judicial  power  of  the  United  States  may  extend.  The 
particular  court  in  which  the  case  was  brought  was  created  by 


362  Cases  on  Federal  Procedure 

statute,  and  may  not  exercise  any  jurisdiction  except  that  which 
the  statute  gives  it.  The  Act  of  Congress  provides  that  when  the 
jurisdiction  is  founded,  as  it  is  here,  solely  on  the  fact  that  the 
action  is  between  citizens  of  different  States,  the  suit  shall  be 
brought  only  in  the  district  of  the  residence  of  either  the  plaintiff 
or  the  defendant.  Neither  the  buyer  nor  Brewer  was  a  resident 
of  the  Eastern  District  of  North  Carolina.  It  is  true  that  this 
provision  confers  a  privilege  upon  the  defendant.  He  may  waive 
it  if  he  chooses.  If  the  controversy  is  one  between  citizens  of 
different  States,  he  may  consent  to  be  sued  in  any  district.  Brewer, 
however,  has  never  waived  his  objection  to  being  sued  in  the  East- 
ern District  of  North  Carolina.^ 


LIVINGSTON  V.  JEFFERSON. 

Circuit  Court,  D.  Virginia.    1811. 

15  Fed.  Cas.  No.  8411,  p.  660,  1  Brockenhrough.  203. 

M.VRSHALL,  Circuit  Justice. — The  sole  question  now  to  be  de- 
cided is  this — Can  this  court  take  cognizance  of  a  trespass  com- 
mitted on  lands  lying  within  the  United  States,  and  without  the 
district  of  Virginia,  in  a  case  where  the  trespasser  is  a  resident 
of,  and  is  found  within  the  district?  I  concur  with  my  brother 
judge  in  the  opinion  that  it  cannot.  I  regret  that  the  inconven- 
ience to  which  delay  might  expose  at  least  one  of  the  parties,  to- 

1  Only  a  portion  of  the  opinion   is  reprinted. 

The  following  are  a  few  of  the  nunierous  cases  in  which  it  has  been  held 
that  there  was  a  waiver  of  one's  right  to  be  sued  in  a  particular  court: 
Western  Loan  Co.  v.  Butte  &  Boston  Min.  Co.,  210  U.  R.  .S68,  3(59,  28  S.  Ct. 
720,  720,  52  L.  Ed.  1101,  1102  (1908)  appeared  and  pleaded  to  the  merits; 
Lebcnsberger  v.  Scofield,  1:39  Fed.  380,  384-385,  71  C.  C.  A.  476,  480-481 
(1905)  joined  defenses  to  merits  with  defenses  to  clnini  tliat  service  was 
invalid;  Baldwin  v.  Pacific  Power  &  Light  Co.,  199  Fed.  291  (1912)  de- 
fendant filed  jx'tition  for  removal  and  jilaintiff  filed  amended  complaint  in 
Federal  Court  and  signed  stipulation  gixing  defendant  time  to  plead  thereto. 

But  see  Pacific  Mut.  Life  Ins.  Co.  v.  Tompkins,  101  Fed.  539,  541,  41 
C.  C.  A.  488,  490  (1900)  attended  taking  of  depositions  before  issues  were 
made  iiji,  and  fih-ii  no  plea  in  aliatcmenf ;  Chesapeake  &  O.  C.  A.  Co.  v.  Fire 
Creek  Coal  &  Coko  Co.,  119  Fc.l.  942,  944  (1902)  demurrer  to  bill;  Stonega 
Coal  &  Coke  Co.  V.  Louinviile  &  N.  K.  Co.,  139  Fed.  271  (1905)  appeared  at 
time  dipositions  were  taken  and  witness  was  cross-examined,  and  made 
utipulations  at  time  of  taking  of  depositions;  Hagstoz  v.  Mutual  Life  Ins. 
Co.  of  New  York,  179  Fed.  569,  571  (1910)  foreign  corporation  appointed 
registered  agent  on  whom  aummona  might  be  served. — Ed. 


District  Courts  363 

gether  with  the  situation  of  the  court,  prevent  me  from  bestowing 
on  this  question  that  deliberate  consideration  wliich  the  very  able 
discussion  it  has  received  from  the  bar  would  seem  to  require — 
but  I  have  purposely  avoided  any  investigation  of  the  subject  pre- 
vious to  the  argument,  and  must  now  be  content  with  a  brief  state- 
ment of  the  opinion  I  have  formed,  and  a  sketch  of  the  course  of 
reasoning  which  has  led  to  it.  The  doctrine  of  actions  local  and 
transitory  has  been  traced  up  to  its  origin  in  the  common  law — 
and,  as  has  been  truly  stated  on  both  sides,  it  appears  that  orig- 
inally all  actions  were  local.  That  is,  that  according  to  the  prin- 
ciples of  the  common  law,  every  fact  must  be  tried  by  a  jury  of 
the  vicinage.  The  plain  consequence  of  this  principle  is,  that  those 
courts  only  could  take  jurisdiction  of  a  case,  who  were  capable  of 
directing  such  a  jury  as  must  try  the  material  facts  on  which  their 
judgment  would  depend.  The  jurisdiction  of  the  courts  there- 
fore necessarily  becomes  local  with  respect  to  every  species  of 
action.  But  the  Superior  Courts  of  England  having  power  to 
direct  a  jury  to  every  part  of  the  kingdom,  their  jurisdiction  could 
be  restrained  by  this  principle  only  to  eases  arising  on  transactions 
which  occurred  within  the  realm.  Being  able  to  direct  a  jury 
either  to  Surrey  or  Middlesex,  the  necessity  of  averring  in  the 
declaration,  that  the  cause  of  action  arose  in  either  county,  could 
not  be  produced  in  order  to  give  the  court  jurisdiction,  but  to  fur- 
nish a  venire.  For  the  purpose  of  jurisdiction,  it  would  unques- 
tionably be  sufficient,  to  aver  that  the  transaction  took  place  within 
the  realm.  This,  however,  being  not  a  statutory  regulation,  but 
a  principle  of  unwritten  law,  which  is  really  human  reason  applied 
by  courts,  not  capriciously,  but  in  a  regular  train  of  decisions,  to 
human  affairs,  according  to  the  circumstances  of  the  nation,  the 
necessity  of  the  times,  and  the  general  state  of  things,  was  thought 
susceptible  of  modification — and  judges  have  modified  it.  They 
have  not  changed  the  old  principle  as  to  form.  It  is  still  neces- 
sary to  give  a  venue ;  and  where  the  contract  exhibits  on  its  face, 
evidence  of  the  place  where  it  was  made,  the  party  is  at  liberty  to 
aver  that  such  place  lies  in  any  county  in  England.  This  is  known 
to  be  a  fiction.  Like  an  ejectment,  it  ns  the  creature  of  the  court, 
and  is  moulded  to  the  purposes  of  justice,  according  to  the  view 
which  its  inventors  have  taken  of  its  capacity  to  effect  those  pur- 
poses. It  is  however,  of  undeniable  extent.  It  has  not  absolutely 
prostrated  all  distinction  of  place,  but  has  certain  limits  prescribed 
to  it,  founded  in  reasoning  satisfactory  to  those  who  have  grad- 
ually fixed  these  limits.     It  may  well  be  doubted,  whether  at  this 


364  Cases  on  Federal  Procedure 

day,  they  are  to  be  changed  by  a  judge  not  perfectly  satisfied  with 
their  extent.  This  fiction  is  so  far  protected  by  its  inventors,  that 
the  averment  is  not  traversable  for  the  purpose  of  defeating  an 
action  it  was  invented  to  sustain;  but  it  is  traversable  whenever 
such  traverse  may  be  essential  to  the  merits  of  the  cause.  It  is 
always  traversable  for  the  purpose  of  contesting  a  jurisdiction 
not  intended  to  be  protected  by  the  fiction. 

In  the  case  at  bar,  it  is  traversed  for  that  purpose,  and  the 
question  is,  whether  this  be  a  case  in  which  such  traverse  is  sus- 
tainable ;  or,  in  other  words,  whether  courts  have  so  far  extended 
their  fiction  as,  by  its  aid,  to  take  cognizance  of  trespasses  on  lands 
not  laying  within  those  limits  which  bound  their  process.  They 
have,  without  legislative  aid,  applied  this  fiction  to  all  personal 
torts,  and  to  all  contracts  wherever  executed.  To  this  general  rule, 
contracts  respecting  lands  form  no  exception.  It  is  admitted,  that 
on  a  contract  respecting  lands,  an  action  is  sustainable  wherever 
the  defendant  may  be  found ;  yet,  in  such  a  case,  every  difficulty 
may  occur  which  presents  itself  in  an  action  of  trespass.  An  in- 
vestigation of  title  may  become  necessary.  A  question  of  boundary 
may  arise,  and  a  survey  may  be  essential  to  the  full  merits  of  the 
cause :  yet  these  difficulties  have  not  prevailed  against  the  juris- 
diction of  the  court.  The}'  have  been  countervailed,  and  more 
than  countervailed  by  the  opposing  consideration,  that  if  the  action 
be  disallowed,  the  injured  party  may  have  a  clear  right  without 
a  remedy  in  a  case  where  the  person  who  has  done  the  wrong,  and 
who  ought  to  make  the  compensation,  is  within  the  power  of  the 
court.  That  this  consideration  should  lose  its  influence,  where  the 
action  pursues  a  thing  not  within  the  reach  of  the  court,  is  of  in- 
evitable necessity;  but  for  the  loss  of  its  influence  where  the  rem- 
edy is  against  the  person  and  can  be  afforded  by  the  court,  I  have 
not  yet  discerned  a  reason,  other  than  a  technical  one,  which  can 
satisfy  my  judgment.  If,  however,  this  technical  distinction  be 
firmly  established,  if  all  other  judges  respect  it,  I  cannot  venture 
to  disregard  it. 

The  distinction  taken  is,  that  actions  are  deemed  transitory, 
where  transactions  on  which  ihey  are  founded,  might  have  taken 
place  anywhere;  but  are  local  where  their  cause  is  in  its  nature 
nece.ssarily  lof-al.  If  this  distinction  be  established;  if  judges  have 
determined  to  carry  their  innovation  on  the  old  rule,  no  further; 
if,  for  a  long  course  of  time,  under  circumstances  which  have  not 
changed,  they  have  determined  this  to  be  the  limit  of  their  fiction, 
it  would  require  a  hardihood  which  I  do  not  possess,  to  pass  this 


District  Courts  365 

limit.  This  distinction  has  been  repeatedly  taken  in  the  books,  and 
recognized  by  the  best  elementary  writers,  especially  Judge  Black- 
stone,  from  whose  authority  no  man  will  lightly  dissent.  3  Bl. 
Comm.  294.  See  also  Mr.  Chitty's  note  (4)  in  his  edition  of  Black- 
stone  (volume  2,  233).  He  expressly  classes  an  action  for  a  tres- 
pass on  lands  with  those  actions  which  demand  their  possession, 
and  which  are  local,  and  makes  only  those  actions  transitory,  which 
are  brought  on  occurrences  that  might  happen  in  any  place.  From 
the  cases  which  support  this  distinction,  no  exception,  I  believe,  is 
to  be  found  among  those  that  have  been  decided  in  court,  on  solemn 
argument.  One  of  the  greatest  judges  who  ever  sat  on  any  bench, 
and  who  has  done  more  than  any  other  to  remove  those  technical 
impediments  which  grew  out  of  a  different  state  of  society,  and 
too  long  continued  to  obstruct  the  course  of  substantial  justice, 
was  so  struck  with  the  weakness  of  the  distinction,  between  taking 
jurisdiction  in  cases  of  contract  respecting  lands,  and  of  torts  com- 
mitted on  the  same  lands,  that  he  attempted  to  abolish  it.  In  the 
case  of  Mostyn  v.  Fabrigas,  1  Cowp.  166,  Lord  Mansfield  states 
the  true  distinction  between  proceedings  which  are  in  rem,  in 
which  the  effect  of  a  judgment  cannot  be  had,  unless  the  thing  lie 
within  the  reach  of  the  court,  and  proceedings  against  the  person 
where  damages  only  are  demanded.  But  this  opinion  was  given  in 
an  action  for  a  personal  wrong  which  is  admitted  to  be  transitory. 
It  has  not,  therefore,  the  authority  to  which  it  would  be  entitled, 
had  this  distinction  been  laid  down  in  an  action  deemed  local.  It 
may  be  termed  an  obiter  dictum.  He  recites  in  that  opinion,  two 
cases  decided  by  himself,  in  which  an  action  was  sustained  for 
trespass  on  lands  lying  in  the  foreign  dominions  of  his  Britannic 
majesty ;  but  both  those  decisions  were  at  nisi  prius.  And  though 
the  overbearing  influence  of  Lord  Mansfield  might  have  sustained 
them  on  a  motion  for  a  new  trial,  that  motion  never  was  made,  and 
the  principle  did  not  obtain  the  sanction  of  the  court.  In  a  sub- 
sequent case, —  (Doulson  v.  Matthews  (1792)  4  Durn.  &  E.,  4  Term 
R.  503), — these  decisions  are  expressly  referred  to  and  overruled, 
and  the  old  distinction  is  affirmed. 

It  has  been  said  that  the  decisions  of  British  courts,  made  since 
the  Revolution,  are  not  authority  in  this  country.  I  admit  it — 
but  they  are  entitled  to  that  respect  which  is  due  to  the  opinions 
of  wise  men,  who  have  maturely  studied  the  subject  they  decide. 
Had  the  regular  course  of  decisions  previous  to  the  Revolution, 
been  against  the  distinction  now  asserted,  and  had  the  old  rule 
been  overthrown  by  adjudications  made  subsequent  to  that  event, 


366  Cases  on  Federal  Procedure 

this  court  might  have  felt  itself  bound  to  disregard  them;  but 
where  the  ancient  date  has  been  long  preserved,  and  a  modern 
attempt  to  overrule  it,  has  itself  been  overruled  since  the  Revolu- 
tion, I  consider  the  last  adjudication  in  no  other  light  than  as  the 
true  declaration  of  the  ancient  rule. 

According  to  the  common  law  of  England  then,  the  distinction 
taken  by  the  defendant's  counsel,  between  actions  local  and  transi- 
tory, is  the  true  distinction,  and  an  action  of  quare  clausum  f regit, 
is  a  local  action.  This  common  law  has  been  adopted  by  the  legis- 
lature of  Virginia.  Had  it  not  been  adopted,  I  should  have  thought 
it  in  force.  "When  our  ancestors  migrated  to  America,  they  brought 
with  them  the  common  law  of  their  native  country,  so  far  as  it  was 
applicable  to  their  new  situation ;  and  I  do  not  conceive  that  the 
Revolution  would,  in  any  degree,  have  changed  the  relations  of 
man  to  man,  or  the  law  which  regulated  those  relations.  In  break- 
ing our  political  connections  with  the  parent  State,  w^e  did  not 
break  our  connection  with  each  other.  It  remained  subsequent  to 
the  ancient  rules,  until  those  rules  should  be  changed  by  the  com- 
petent authority.  But  it  has  been  said,  that  this  rule  of  the  com- 
mon law  is  impliedly  changed  by  the  Act  of  Assembly,  which 
directs  that  a  jurj'  shall  be  summoned  from  the  bystanders.  Were 
I  to  discuss  the  effect  of  this  act  in  the  courts  of  the  State,  the 
inquiry,  whether  the  fiction  already  noticed  was  not  equivalent  to 
it  in  giving  jurisdiction,  would  present  itself.  There  are  also 
other  regulations,  as,  that  the  jurors  should  be  citizens,  which 
would  deserve  to  be  taken  into  view.  But  I  pass  over  these  con- 
siderations, because  I  am  decidedly  of  opinion,  that  the  jurisdic- 
tion of  the  Courts  of  the  United  States  depends,  exclusively,  on 
the  Constitution  and  laws  of  the  United  States, 

In  considering  the  jurisdiction  of  the  Circuit  courts,  as  defined 
in  the  Judicial  Act  (1  Stat.  73),  and  in  the  Constitution  which 
that  act  carries  into  execution,  it  is  wortliy  of  observation,  that  the 
jurisdiction  of  the  court  depends  on  the  character  of  the  parties, 
and  that  only  the  court  of  that  district  in  which  the  defendant 
resides,  or  is  found,  can  take  jurisdiction  of  the  cause.  In  a  court 
so  constituted,  the  argument  drawn  from  the  total  failure  of 
justice,  should  a  trespasser  be  declared  to  be  only  amenable  to  the 
court  of  that  district  in  which  the  land  lies,  and  \n  which  he  will 
never  be  found,  appeared  to  me  to  be  entitled  to  peculiar  weight. 
But  according  to  the  course  of  the  common  law,  the  process  of  the 
court  must  be  exocutcd  in  order  to  give  it  the  right  to  try  the 
cause,  and  consequently  the  same  defect  of  justice  might  occur. 


District  Courts  G6Z 

Other  judges  have  felt  the  weight  of  this  argument,  and  have 
struggled  ineffectually  against  the  distinction,  which  produces  the 
inconvenience  of  a  clear  right  without  a  remedy.  I  must  submit 
to  it.     The  law  upon  the  demurrer  is  in  favor  of  the  defendant.^ 


In  United  States  v.  Sutherland,  214  Fed.  320  (1914)  it  was  held 
that  the  provision  of  Judicial  Code  (Act  March  3,  1911,  c.  231, 
§53,  36  Stat.  1101  U.  S.  Comp.  St.  Supp.  1911,  p.  1501),  that, 
"when  a  judicial  district  contains  more  than  one  division  *  *  * 
all  prosecutions  for  crimes  or  offenses  shall  be  had  within  the  divi- 
sion of  such  districts  w^here  the  same  were  committed,  unless  the 
court  or  the  judge  thereof,  upon  the  application  of  the  defendant, 
shall  order  the  cause  to  be  transferred  for  prosecution  to  another 
division  of  the  district, ' '  applies  only  to  districts  having  statutory 
divisions ;  and  in  a  district  having  no  such  divisions,  but  which,  on 
account  of  there  being  different  places  fixed  for  holding  court,  the 
court  has  by  rule  divided  into  so-called  divisions  for  convenience 
in  drawing  juries,  etc.,  the  court  has  discretionary  power  to  trans- 
fer a  criminal  cause  from  one  place  of  holding  court  to  another 
without  the  consent  of  the  def  endant.^ 


JONES  V.  GOULD. 
Circuit  Court,  S.  D.  Ohio,  E.  D.    1905. 
141  Fed.  698. 
In  Equity.    On  motion  to  quash  service. 

Richards,  Circuit  Judge  (orally). — This  case  is  submitted  to 
me  upon  a  motion  to  quash  the  service  of  a  restraining  order  made 
upon  the  defendants,  Gould,  Ramsey,  Guy  and  Blair.     I  had  ex- 

1  An  opinion  to  the  same  effect  by  Tyler,  District  Judge,  is  omitted. 
For  other  eases  in  which  it  was  held  the  action  was  local  in  its  nature, 

see  East  Tennessee,  V.  &  G.  E.  Co.  v.  Atlanta  &  F,  R.  Co.,  49  Fed.  60S, 
616-617  (1892)  appointment  of  receiver  to  be  put  in  charge  of  property; 
Seybert  v.  Shamokin  &  Mt.  C.  Electric  Ry.  Co.,  110  Fed.  810  (1901)  foie 
closure  of  mortgage;  Texas  Co.  v.  Central  Fuel  Oil  Co.,  194  Fed.  1,  8-9, 
114  C.  C.  A.  21,  28-29  (1912)  enforcement  of  lien;  Kentucky  Coal  Lands 
Co.  V.  Mineral  Development  Co.,  219  Fed.  45,  46-47,  133  C.  C.  A.  151, 
152-153  (1914)  ejectment.— Ed. 

2  The  syllabus  of  the  case  is  reprinted. — Ed. 


368  Cases  on  Federal  Procedure 

pected  to  put  in  writing  my  conclusions,  but  an  examination  of 
the  authorities  has  occupied  the  limited  time  at  my  disposal  and 
precluded  this.  I  ma^^  hereafter  prepare  a  short  opinion.  At 
present  I  shall  content  myself  with  stating  the  general  results 
reached. 

Upon  the  filing  of  the  hill,  I  set  the  case  for  hearing  upon  the 
motion  to  appoint  a  receiver,  and  upon  application  of  the  com- 
plainant restrained  the  defendants,  until  the  further  order  of  the 
court,  from  selling,  contracting  to  sell,  transferring,  or  parting 
with  the  possession  of  any  of  the  properties  of  the  Little  Kanawha 
Syndicate,  so  called,  as  described  in  the  bill.  I  also  directed  that 
notice  of  this  order,  with  a  copy  of  the  bill,  be  served  personally 
upon  the  said  defendants.  Service  of  this  order  was  made,  and 
the  defendants,  making  a  special  appearance  for  the  purpose,  have 
filed  motions  to  quash  the  service,  made  outside  of  this  State  and 
district,  on  the  ground  that  in  each  instance  (1)  the  defendant 
is  an  inhabitant  and  citizen  of  some  State  other  than  Ohio;  (2)  it 
appears  upon  the  face  of  the  bill  that  the  relief  sought  is  of  such 
nature  that  the  defendant  cannot  lawfully  be  called  upon  to  de- 
fend against  the  same  in  this  district;  and  (3)  the  court  is  with- 
out jurisdiction  to  proceed  against  the  defendant.     *     *     * 

Proceeding  to  a  consideration  of  the  merits  of  the  motion :  "While 
the  first  section  of  Act  March  3,  1875,  e.  137,  18  Stat.  470,  as 
amended  in  1888  (Act  Aug.  13,  1888,  c.  866,  §  1,  25  Stat.  433 
[U.  S.  Comp.  St.  1901,  p.  508]),  provides  that  "no  civil  suit  shall 
be  brought  before  either  of  said  courts  against  any  person  by  any 
original  process  or  proceeding  in  any  other  district  that  whereof 
he  is  an  inhabitant,  but  where  the  jurisdiction  is  founded  only 
upon  the  fact  that  the  action  is  between  citizens  of  different  States, 
suit  shall  be  brought  only  within  the  district  of  the  residence  of 
either  the  plaintiff  or  defendant,"  and  while  clearly  the  institu- 
tion of  this  suit  is  not  in  compliance  with  these  provisions,  for 
neither  the  plaintiff  nor  any  of  the  defendants  are  residents  of 
this  district,  it  is  contended  that  jurisdiction  may  be  sustained, 
and  all  the  defendants  ultimately  be  brought  in,  under  section  8 
of  the  same  act  (18  Stat.  472  [U.  S.  Comp.  St.  1901,  p.  513]), 
which  provides  "that  when  in  any  suit  commenced  in  any  Circuit 
Court  of  the  United  Slates  to  enforce  any  legal  or  equilabli-  lien, 
or  claim  to,  <^>i'  to  remove  any  incnmbrance  oi'  lien  or  cloud  upon 
the  title  of  real  or  personal  i)i'operty  within  ]ho  district  where  such 
suit   is  bronfrlit,  one  or  more  of  the  defendants  therein  shall  not 


District  Courts  369 

be  an  inhabitant  of,  or  found  within  the  said  district,  or  shall  not 
voluntarily  appear  thereto,  it  shall  be  lawful  for  the  court  to  make 
an  order"  directing  special  service  by  publication  or  otherwise. 

The  contention  of  the  plaintiff,  briefly  stated,  is  that  this  is  a 
suit  to  enforce  a  trust  in  certain  property,  real  or  personal,  which 
was  purchased  in  part  with  moneys  subscribed  by  him,  and  is  now 
held  by  the  syndicate  managers,  Gould,  Ramsey  &  Guy,  upon  cer- 
tain trusts  defined  in  what  is  known  as  the  syndicate  agreement ; 
that  a  part  of  this  property,  namely,  the  stock  of  two  railroad 
companies  organized  in  Ohio,  has  a  sitns  within  this  district,  and 
because  of  this  fact,  the  suit  may  be  regarded  as  one  to  enforce  a 
legal  or  equitable  claim  to  such  property,  of  which  the  court  has 
jurisdiction  under  section  8,  with  authority  to  being  the  non- 
resident defendants  in  by  publication. 

I  am  satisfied  from  the  authorities  cited  that  the  stock  referred 
to  has  its  situs  within  this  district.  These  Ohio  railroad  corpora- 
tions are  inhabitants,  citizens  of  Ohio,  and  their  stocks  have  their 
situs  here.  Jellenik  v.  Huron  Copper  Co.,  177  U.  S.  1,  20  Sup.  Ct. 
559,  44  L.  Ed.  647. 

But,  as  I  sufficiently  indicated  during  the  course  of  the  argu- 
ment, the  serious  question,  it  seems  to  me,  is  whether  this  is  a  suit 
"to  enforce  a  legal  or  equitable  lien  upon  or  claim  to"  this  rail- 
road stock,  which  is  the  only  property  within  the  district.  Of 
course,  the  general  rule  is  well  known  that  the  authority  of  a 
court  is  limited  to  persons  and  property  within  its  territorial  juris- 
diction. Where  an  action  is  in  personam,  the  defendant  must  be 
served  or  his  appearance  secured ;  if  in  rem,  judgment  only  oper- 
ates upon  the  property  within  the  district.  Upon  examination  of 
such  authorities  as  I  have  been  able  to  make  and  a  consideration 
of  the  phraseology  of  the  section,  I  have  reached  th?i  conclusion 
that  to  come  within  its  intent  and  meaning,  the  suit  must  really 
be  one  in  rem,  directed  primarily  against  specific  property  for 
the  purpose  of  enforcing  a  legal  or  equitable  lien  upon  or  claim 
to  such  property,  or  of  removing  an  incumbrance,  or  lien,  or  cloud 
upon  the  title  to  such  property.  All  the  cases  cited  have  been 
cases  of  this  kind,  eases  strictly  in  rem,  and  I  have  not  found  one 
in  which  jurisdiction  is  sustained  under  section  8,  that  was  not 
directed  primarily  against  property  located  within  the  district. 

There  are  several  cases  where  the  court  has  refused  to  take 
jurisdiction  of  an  action  to  subject  the  property  of  the  defendant 
ultimately  to  the  payment  of  his  debts,  although  part  of  the  prop- 
Wheaton  C.  F.  P.— 24 


370  Cases  on  Federal  Procedure 

erty  was  within  the  district.  Thus  in  the  case  of  Shainwald  v. 
Lewis  (D.  C.)  5  Fed.  510,  Judge  IIillyer  said  respecting  section 
738  (page  516)  : 

"In  my  judgment  this  section  was  only  intended  to  reach  those 
suits  in  equity  in  which  it  was  sought  to  enforce  some  pre-existing 
lien  or  claim,  legal  or  equitable,  upon  or  to  some  specific  property, 
real  or  personal,  and  not  cases  in  which  it  is  sought  to  reach  and 
appropriate  the  general  property  of  a  defendant  to  the  payment 
of  his  debts.  By  the  words  'legal  or  equitable  lien  or  claim 
against  real  or  personal  property,'  Congress  intended  to  reach 
every  case  in  which  there  should  be  any  sort  of  charge  upon  a 
specific  piece  of  property,  capable  of  being  enforced  by  a  court 
of  equity." 

And  in  Dormitzer  v.  Illinois,  etc..  Bridge  Co.  (C.  C.)  6  Fed. 
217,  Judge  Lowell  declined  to  entertain  jurisdiction  of  a  suit 
to  attach  the  property  of  a  non-resident  defendant,  saying  (page 
218)  : 

"A  recent  statute  gives  these  courts  jurisdiction  to  enforce  a 
lien  upon  or  claim  to,  or  remove  an  encumbrance,  or  lien,  or  cloud 
upon  the  title  to,  real  or  personal  property  within  the  district, 
though  the  defendants  or  some  of  them,  may  not  be  either  inhabit- 
ants thereof  or  found  therein,  first  giving  notice  to  the  absent  de- 
fendants. But  this  means  a  lien  or  title  existing  anterior  to  the 
suit,  and  not  one  caused  by  the  institution  of  suit  thereof." 

I  have  not  been  able  to  find  that  these  cases  have  been  qualified 
or  overruled. 

This  suit  might  indirectly  and  ultimately  affect  property  in 
Ohio,  but  not  necessarily.  The  plaintiff,  as  a  syndicate  subscriber, 
has  no  lien  on,  or  claim  to  this  property.  He  did  subscribe  certain 
money,  some  $70,000,  to  the  syndicate  fund.  This  fund  was  placed 
absolutely  in  the  possession  and  control  of  the  syndicate  managers; 
tlic  title  passed  to  them;  they  were  to  purchase  with  it  certain 
coal  and  railroad  properties,  which  were  to  be  connected  by  lines 
to  be  constructed  by  the  syndicate,  and  after  this  was  done,  the 
properties  were  either  to  be  sold  and  the  profits,  if  there  were 
any,  divided  among  the  subscribers,  or  the  property  was  to  be 
capitalized  and  the  stock  distributed  among  the  subscribers.  The 
managers  were  to  receive  for  their  services  a  certain  percent,  of 
the  funds  subscribed.  The  fullest  discretion  was  vested  in  them, 
hotii  as  to  llic  lime  of  exist cncc  of  tlie  syndicate,  and  their  conduct 
under  tlie  agreement.    This  subscriber  brings  this  suit  not  because 


District  Courts  371 

he  is  a  creditor  of  the  syndicate  managers,  not  because  he  has  a 
claim  against  them,  and  thus,  in  a  certain  sense,  a  claim  against 
the  syndicate  property,  but  because  he  contributed  to  the  fund 
in  their  possession  and  control.  He  has  no  title  to  or  interest  in 
the  fund.  He  may  have  an  ultimate  interest  in  the  profits  of  the 
deal,  if  it  turns  out  ultimately  that  there  are  any.  What  he  wants 
now  is  to  control  the  sj'ndicate  managers,  or  have  the  court  control 
them.  This  appears  from  the  wording  of  the  temporary  restrain- 
ing order.  He  wants  the  court  to  appoint  a  receiver  to  take  over 
the  syndicate  property,  and  administer  it,  and  call  upon  the  syndi- 
cate managers  to  account  for  what  thc}^  have  dene. 

Now,  this  does  not  seem  to  me  so  much  a  suit  against  the  prop- 
ert3%  because  of  some  lieu  or  claim  to  it,  as  a  suit  against  the  syn- 
dicate managers,  because  they  are  not  doing  their  duty  under  the 
syndicate  agreement.  It  appears  to  me  that  it  is  the  syndicaie 
managers,  and  not  the  syndicate  property,  that  the  plaintiff  is 
after.  I  think  it  would  be  manifestly  unjust  and  unfair  not  only 
to  the  managers  themselves  who  have  direct  interests  under  the 
syndicate  agreement,  but  to  the  69/70  of  the  subscribers  to  the 
fund  who  are  not  represented  here,  for  the  court  to  take  jurisdic- 
tion and  assume  to  grant  the  relief  asked  for  in  the  absence  and 
without  the  appearance  of  the  syndicate  managers.  In  my  opin- 
ion, they  are  necessary  and  indispensable  parties,  and  as  they  have 
not  been  brought  in,  and  can  not  be  brought  in,  I  think  the  case 
is  one  of  which  I  ought  not  further  entertain  jurisdiction. 

I  sustain  the  motion  to  quash  service  and  upon  my  own  motion 
proceeding  to  pass  upon  questions  of  jurisdiction,  I  abrogate  the 
temporary  restraining  order,  decline  to  appoint  a  receiver,  and 
dismiss  the  suit  for  want  of  jurisdiction.^ 

1  Only  a  portion  of  the  opinion  is  reprinted. 

In  the  following  cases  it  was  held  that  their  purpose  was  to  enforce  a 
"legal  or  equitable  lien  upon  or  claim  to,  or  to  remove"  an  "encumbrance 
or  lien  or  cloud  upon  the  title  to  real  or  personal  property. ' '  Citizens '  Sav. 
&  Tr.  Co.  V.  Illinois  Cent.  R.  R.,  205  U.  S.  46,  27  S.  Ct.  425,  51  L.  Ed.  703 
(1907)  cancellation  of  deed  and  leases;  De  Hierapolis  v.  Lawrence,  99  Fed. 
321   (1899)    establishment  as  judgment  as  lien. 

But  see,  contra,  Ladew  v.  Tennessee  Copper  Co.,  218  U,  S.  357,  366-368, 
31  S.  Ct.  81,  83-84,  54  L.  Ed.  1069,  1072-1073  (1910)  abatement  of  nui- 
sance; Nelson  v.  Husted,  182  Fed.  921,  922-923  (1910)  specific  enforcement 
of  contract;  Bank  of  Commerce  &  Trust  v.  Me  Arthur,  24S  Fed.  138  (1918) 
setting  aside  of  transfer  of  personalty  by  debtor  and  ha^•ing  said  property 
declared  debtor's  and  subjected  to  the  payment  of  his  debts. 

For  the  meaning  of  the  word  "found,"  see  2  Words  and  Phrases  (2nd 
Series)    564.— Ed. 


372  Cases  on  Federal  Procedure 

In  re  TYLER. 

Supreme  Court  of  the  United  States.     1893. 

149  U.  S.  164,  13  S.  Ct.  785,  37  L.  Ed.  689. 

Mr.  Chief  Justice  Fuller,  after  stating  the  ease,  delivered  the 
opinion  of  the  court.     *     •     • 

No  rule  is  better  settled  than  that  when  a  court  has  appointed 
a  receiver,  his  possession  is  the  possession  of  the  court,  for  the 
benefit  of  the  parties  to  the  suit  and  all  concerned,  and  cannot  be 
disturbed  without  the  leave  of  the  court ;  and  that  if  any  person, 
without  leave,  intentionally  interferes  with  such  possession,  he 
necessarily  commits  a  contempt  of  court,  and  is  liable  to  punish- 
ment thereof.  Wiswall  v.  Sampson,  14  How.  52 ;  Taylor  v.  Carryl, 
20  How.  583 ;  Davis  v.  Gray,  16  Wall.  203 ;  Krippendorf  v.  Hyde, 
110  U.  S.  276 ;  Barton  v.  Barbour,  104  U.  S.  126 ;  Gumbel  v.  Pit- 
kin, 124  U.  S.  131.     *     *     * 

The  levy  of  a  tax  warrant,  like  the  levy  of  an  ordinary  f,eri 
facias,  sequestrates  the  property  to  answer  the  exigency  of  the 
writ ;  but  property  in  the  possession  of  the  receiver  is  already  in 
sequestration,  already  held  in  equitable  execution,  and  while  the 
lien  for  taxes  must  be  recognized  and  enforced,  the  orderly  ad- 
ministration of  justice  requires  this  to  be  done  by  and  under  the 
sanction  of  the  court.  It  is  the  duty  of  the  court  to  see  to  it  that 
this  is  done;  and  a  seizure  of  the  property  against  its  will  can 
only  be  predicated  upon  the  assumption  that  the  court  will  fail 
in  the  discharge  of  its  duty,  an  assumption  carrying  a  contempt 
upon  its  face. 

The  acceptance  of  the  rule  has  been  general,  and  but  few  de- 
cisions were  cited  on  the  argument  in  illustration  of  its  appli- 
cation.^ 


FARMERS'  LOAN  &  TRUST  CO.  v.  IOWA  WATER  CO. 

Circuit  Court,  S.  I).  Iowa,  E.  D.     1897. 

80  Fed.  467. 

Thayer,  Circuit  Judge. — This  is  a  motion  to  vacate  an  order 
of  reference,  made  by  the  district  judge  for  the  Southern  District 

lOiily    a    iiortioii    of   tlic   diiinion    ia   reprinted. — Ed. 


District  Courts  373 

of  Iowa,  to  a  special  master  on  April  14,  1896 ;  also  to  vacate  a 
report  of  the  master  made  and  filed  on  November  7,  1896,  and  a 
final  decree  entered  on  said  report  on  February  19,  1897.  The 
term  of  court  at  which  said  decree  was  entered  expired  on  April 
12,  1897,  and  the  motion  to  vacate  the  above  orders  and  decree, 
and  to  clear  the  record,  was  not  made  and  filed  until  April  21, 
1897.  The  ground  of  the  motion  is  that,  because  the  district  judge 
by  whom  the  order  of  reference  was  made  and  the  special  master 
by  him  appointed  married  sisters,  the  order  of  reference  was  made 
in  violation  of  the  provision  of  section  7  of  the  Act  of  August  13, 
1888  (25  Stat.  433,  437,  c.  866),  and  that  the  master's  report  in 
pursuance  of  said  order  of  reference,  and  all  subsequent  proceed- 
ings taken  thereunder,  including  the  final  decree,  were  and  are 
utterly  void.     *     *     * 

Another  consideration  bearing  upon  the  subject  in  hand  must 
also  be  kept  in  mind.    The  statute  above  cited  is  as  follows : 

"No  person  related  to  any  justice  or  judge  of  any  court  of  the 
United  States  by  affinity  or  consanguinity  within  the  degree  of 
first  cousin,  shall  hereafter  be  appointed  by  such  court  or  judge 
to,  or  employed  by  such  court  or  judge  in,  any  office  or  duty  in 
any  court  of  which  said  justice  or  judge  may  be  a  member." 

It  is  obvious  from  an  inspection  of  the  foregoing  statute  that, 
in  its  relation  to  the  case  in  hand,  it  presents  the  question  whether 
two  men  who  happen  to  marry  sisters  are  so  related  "by  affinity 
or  consanguinity"  that  the  one,  if  he  happens  to  be  a  Federal 
judge,  may  not  appoint  the  other  as  a  master  to  hear  and  report 
upon  an  isolated  case.  Without  expressing  a  definite  opinion  upon 
this  question,  it  is  to  be  observed  that  it  is  by  no  means  certain 
that  the  statute  has  any  application  to  the  case  at  bar.  Counsel 
have  termed  the  relationship  between  the  district  judge  and  the 
special  master  as  that  of  brother-in-law,  because  they  married 
sisters,  but  this  is  not  correct,  since  the  term  of  "brother-in-law" 
is  thus  defined:  "The  brother  of  one's  husband  or  wife;  also 
one's  sister's  husband."  Cent.  Diet.;  "Webst.  Diet.  The  phrase 
"related  by  consanguinity"  means  related  by  blood,  a  relation 
which  did  not  exist  in  the  present  case ;  while  the  phrase  ' '  related 
by  affinity"  is  the  relationship  which  is  contracted  by  marriage 
between  the  husband  and  the  blood  relations  of  the  wife  or  be- 
tween the  wife  and  the  blood  relations  of  the  husband.  Whart. 
Law.  Diet. ;  Enc.  Diet.  1896.  In  the  light  of  these  definitions,  it 
admits  of  grave  doubt  whether  the  relationship  existing  between 
the  judge  and  the  master  is  comprehended  by  the  language  of  the 


374  Cases  on  Federal  Procedure 

statute.  It  is  furthermore  doubtful  whether  the  appointment  of 
a  person  to  act  as  referee  or  special  master  in  a  given  case  is  an 
appointment  to  an  office  or  duty  in  the  court,  within  the  purview 
of  the  statute.  But,  whatever  may  be  the  correct  view  with  refer- 
ence to  the  questions  last  suggested,  it  is  only  necessary  to  say,  at 
present,  that  they  are  questions  to  be  determined  in  the  first  in- 
stance by  the  judge  upon  whom  the  duty  of  appointing  a  master  or 
a  referee  is  devolved.  When  a  court  is  called  upon  to  choose  a 
master  or  referee,  such  action  necessarily  involves  a  consideration 
and  decision  of  the  question  whether  the  person  proposed  is  qual- 
ified to  act  in  that  capacity.  The  decision  of  that  question  is  with- 
in the  legitimate  power  of  the  judge,  and  is  the  exercise  of  a  judi- 
cial function.  It  is  difficult  to  perceive,  therefore,  how  an  error 
made  in  the  decision  of  the  question  can  have  the  effect  of  ren- 
dering all  subsequent  proceedings,  based  upon  the  action  of  the 
master,  utterly  nugatory  and  void,  especially  when,  as  in  the  pres- 
ent case,  the  judge  himself  was  not  disqualified  to  hear  and  decide 
the  case,  and  the  court  over  which  he  presided  had  acquired  full 
jurisdiction  of  the  parties  and  the  subject  matter.  It  results  from 
these  views  that  the  final  decree  and  the  precedent  orders  were  not 
utterly  void,  and  that  the  court  is  without  power  to  disturb  the 
decree  on  a  mere  motion.  An  order  will  accordingly  be  entered 
overruling  the  same.^ 

lOnly  a  portion  of  the  opinion  is  reprinted. — Ed. 


CHAPTER  in. 

CIRCUIT  COURTS  OF  APPEALS. 

SECTION  I. 

Jurisdiction. 

MORGAN  V.  THOMPSON. 

Circuit  Court  of  Appeals,  Eighth  Circuit.    1903. 

124  Fed.  203,  59  CCA.  672. 

Sanborn,  Circuit  Judge. — This  is  a  writ  of  error  to  review  a 
judgment  of  the  United  States  Court  of  Appeals  of  the  Indian 
Territory  which  reversed  a  judgment  of  the  United  States  Court 
for  the  Southern  District  of  the  Indian  Territory,  overruling  a 
demurrer  to  a  petition,  and  remanded  the  case  to  the  trial  court 
"for  further  proceedings  to  be  therein  had  according  to  law,  and 
not  inconsistent  with  the  opinion  herein  delivered." 

The  jurisdiction  of  this  court  to  review  the  judgment  of  the 
United  States  Courts  of  Appeals  of  the  Indian  Territory  is  de- 
rived from  this  provision  of  section  11,  c.  145,  Act  March  1,  1895, 
28  Stat.  698: 

"Writs  of  error  and  appeals  from  the  final  decision  of  said 
Appellate  Court  shall  be  allowed  and  may  be  taken  to  the  Circuit 
Court  of  Appeals  for  the  Eighth  Judicial  Circuit  in  the  same  man- 
ner and  under  the  same  regulations  as  appeals  are  taken  from  the 
Circuit  Courts  of  the  United  States." 

The  act  creating  the  Circuit  Courts  of  Appeals  grants  jurisdic- 
tion to  them  to  review  the  decisions  of  the  Circuit  Courts  of  the 
United  States,  in  these  words: 

"That  the  Circuit  Courts  of  Appeals  established  by  this  act 
shall  exercise  appellate  jurisdiction  to  review  by  appeal  or  by 
writ  of  error  final  decisions  in  the  District  Court  and  the  existing 
Circuit  Courts  in  all  cases  other  than  those  provided  for  in  the 
preceding  section  of  this  act  unless  otherwise  provided  by  law." 

375 


376  Cases  on  Federal  Procedure 

U.  S.  Comp.  St.  1901,  p.  549,  §  6,  Act  March  3,  1891,  c.  517,  §  6, 
26  Stat.  828. 

A  final  decision,  within  the  meaning  of  these  provisions  of  the 
Acts  of  Congress,  is  one  which  completely  adjudicates  the  rights 
of  the  parties  to  the  suit,  so  that  if  it  is  affirmed  the  court  below 
will  have  nothing  to  do  but  to  execute  the  judgment  or  decrees 
which  evidences  the  decision  it  has  already  rendered.  An  order, 
judgment,  or  decree  which  does  not  have  this  effect — one  which 
leaves  the  rights  of  the  parties  to  the  suit  undetermined  and  sub- 
ject to  further  adjudication — is  not  a  final  decision,  and  the  Courts 
of  Appeals  have  no  jurisdiction  to  review  it.  Standley  v.  Roberts, 
59  Fed.  836,  8  C.  C.  A.  305,  308;  Hooven,  Owens  &  Renstschler 
Co.  v.  John  Featherstone's  Sons,  111  Fed.  81,  85,  49  C.  C.  A.  229, 
233 ;  Carmichael  v.  City  of  Texarkana,  116  Fed.  845,  846,  54  C.  C. 
A.  179,  180,  58  L.  R.  A.  911.  The  judgment  challenged  by  the 
writ  of  error  in  this  case  reversed  the  judgment  below,  and  re- 
manded the  case  to  the  trial  court  for  further  proceedings.  The 
plaintiffs,  William  J.  Thompson,  Samuel  C.  Wall,  and  Ellen  Wall, 
had  brought  an  action  of  forcible  entry  and  detainer  against  the 
defendants,  William  Morgan  and  Robert  Morgan.  The  case  had 
proceeded  until  a  second  amended  petition  had  been  interposed 
by  the  plaintiffs,  and  a  demurrer  to  it  by  the  defendants.  The 
trial  court  sustained  the  demurrer  and  entered  a  judgment  for 
the  defendants.  The  plaintiffs  appealed  to  the  United  States  Court 
of  Appeals  in  the  Indian  Territory.  That  court  held  the  petition 
sufficient,  reversed  the  judgment  below,  and  remanded  the  case 
to  the  trial  court  for  further  proceedings  not  inconsistent  with  its 
opinion.  The  effect  of  this  ruling  of  the  Court  of  Appeals  is  to 
compel  the  trial  court  to  overrule  the  demurrer,  to  permit  the 
defendants  to  answer  and  to  proceed  to  a  trial  of  the  issues  which 
may  be  raised  by  the  pleadings.  The  statutes  of  the  Indian  Ter- 
ritory provide  that  "upon  a  demurrer  being  overruled  the  party 
demurring  may  answer  or  reply."  Ind.  T.  Ann.  St.  1899,  §  3284; 
Mans.  Dig.  5079.  Thus  it  conclusively  appears  that  the  judgment 
of  the  Court  of  Appeals  reversing  the  judgment  of  the  trial  court 
is  not  a  final  dor-ision  of  the  rights  of  the  parties  to  the  controversy, 
but  that  these  rights  i-emain  undetermined,  and  subject  to  the 
trial  (»f  the  issues  which  are  yet  to  be  framed  and  determined  in 
the  trial  court. 

The  Sni)renie  Court  has  jurisdiction  in  certain  classes  of  cases 
tft  ri'viow  "a  linal  judgment  or  decree  in  juiy  suit  in  the  highest 
court   of  a  state."     Rev.  St.   55  709,  V.  S.  (^oinp.  St.  1901.  p.  575, 


Circuit  Courts  op  Appeals  377 

§  709.  But  that  court  held  that  a  judgment  of  the  Supreme  Court 
of  Wisconsin  reversing  a  judgment  of  an  inferior  court  which 
overruled  a  demurrer  to  a  complaint  v^^as  not  a  final  judgment, 
and  could  not  be  reviewed  in  that  court,  because  it  did  not  finally 
determine  the  rights  of  the  parties  but  remanded  the  case  to  the 
court  below  for  further  proceedings.  Great  Western  Tel.  Co.  v. 
Burnham,  162  U.  S.  339,  341,  342,  16  Sup.  Ct.  850,  40  L.  Ed.  991. 
There  is  a  long  line  of  decisions  in  that  court  to  the  effect  that  a 
judgment  of  a  Supreme  Court  of  a  State  reversing  a  judgment, 
order,  or  decree  of  a  trial  court,  and  remanding  the  case  for  further 
proceedings  either  at  law  or  in  equity,  is  not  a  final  decision,  and 
cannot  be  reviewed  by  the  Supreme  Court  of  the  United 
States.i     *     *     * 

Whether  the  question  be  considered  from  the  standpoint  of 
reason  or  of  authority,  the  conclusion  is  inevitable  that  a  judgment 
which  reverses  the  order  or  judgment  of  a  trial  court,  and  remands 
the  case  for  a  subsequent  hearing  and  adjudication  of  the  rights 
of  the  parties,  is  not  a  final  decision  which  may  be  reviewed  either 
in  Supreme  Court  or  in  this  court  under  the  Acts  of  Congress  to 
which  reference  has  been  made.  The  judgment  of  the  Court  of 
Appeals  of  the  Indian  Territory  was  of  this  character.  This  court 
is  without  jurisdiction  to  review  it,  and  the  writ  of  error  must  be 
dismissed.^ 


AMERICAN  SUGAE-REFINING  CO.  v.  JOHNSON. 

Circuit  Court  of  Appeals,  Fifth  Circuit.     1893. 

60  Fed.  503,  9  C.  C.  A.  110. 

In  the  action  in  the  Circuit  Court  judgment  was  given  for  the 
plaintiff.    The  defendant  sued  out  a  writ  of  error.     His  first  as- 

1  A  long  list  of  such  cases  is  omitted. — Ed. 

2  In  the  following  cases  it  was  held  that  the  decision  of  the  lower  court 
was  final:  Vieksburg  v.  Heuson,  231  U.  S.  259,  264-267,  34  S.  Ct.  95,  97-98, 
58  L.  Ed.  209,  214-215  (1913);  Stevirmae  Oil  &  Gas  Co.  v.  Dittman,  245 
U.  S.  210,  216-217,  38  S.  Ct.  116,  118,  62  L.  Ed.— (1917);  Tornanses  v. 
Melsing,  106  Fed.  775,  783-78.5,  45  C.  C.  A.  615,  624-626  (1901);  Bullock 
Elec.  &  Mfg.  Co.  V.  Westinghouse  Elec.  &  Mfg.  Co.,  129  Fed.  105,  107,  63 
C.   C.   A.    607,   609    (1904). 

But  see,  contra,  Kingman  v.  Western  Mfg.  Co.,  170  U.  S.  675,  18  S.  Ct. 
786,  42  L.  Ed.  1192  (1898);  Whitworth  v.  United  Stages,  114  Fed.  302, 
303-304,  52  C.  C.  A.  214,  215-216  (1902);  Odbert  v.  Marquet,  175  Fed. 
44.  48-51,  99  C.  C.  A.  60,  64-67  (1909);  Emery  v.  Central  Trust  &  Safe 
Deposit  Co.,  204  Fed.  965,  968    (1913).— Ed. 


378  Cases  on  Federal  Procedure 

signment  of  error  was  to  the  effect  that  the  Circuit  Court  did  not 
have  jurisdiction  of  the  action.^ 

Pardee,  Circuit  Judge  (after  stating  the  facts). — The  record 
shows  that  the  question  of  jurisdiction  of  the  Circuit  Court  was 
not  raised  in  the  court  below,  and  of  course  the  jurisdiction  is 
not  certified  as  involved  in  the  case.  The  first  assignment  of  error 
raises  the  question  in  this  court  that  the  jurisdiction  of  the  Cir- 
cuit Court  does  not  appear  from  the  face  of  the  record.  The  ap- 
pellee, relying  upon  the  textual  provisions  of  section  5  of  the  Judi- 
ciary Act  of  1891,  which  is  to  the  efi:'ect  that  appeals  or  writs  of 
error  may  be  taken  from  the  District  courts  or  existing  Circuit 
courts  direct  to  the  Supreme  Court  in  any  case  in  which  the  juris- 
diction of  the  court  is  in  issue,  and  upon  the  terms  of  the  sixth 
section,  which  restrict  the  jurisdiction  of  the  Circuit  Courts  of 
Appeal  to  cases  other  than  those  provided  for  in  the  fifth  section, 
contends  that  this  assignment  of  error  cannot  be  considered  in 
this  court. 

"The  rule,  springing  from  the  nature  and  limits  of  the  judicial 
power  of  the  United  States,  is  inflexible  and  without  exception, 
which  requires  this  court,  of  its  own  motion,  to  deny  its  owA  juris- 
diction, and,  in  the  exercise  of  its  appellate  power,  that  of  all 
other  courts  of  the  United  States,  in  all  cases  where  such  jurisdic- 
tion does  not  affirmatively  appear  in  the  record  on  which,  in  the 
exercise  of  that  power,  it  is  called  to  act.  On  every  writ  of  error 
or  appeal  the  first  and  fundamental  question  is  that  of  jurisdic- 
tion, first  of  this  court,  and  then  of  the  court  from  which  the  rec- 
ord comes.  This  question  the  court  is  bound  to  ask  and  answer 
for  itself,  even  when  not  otherwise  suggested,  and  without  respect 
to  the  relation  of  the  parties  to  it."  Railway  Co.  v.  Swan,  111 
U.  S.  379-389,  4  Sup.  Ct.  510. 

In  the  case  of  ^IcLish  v.  Roff  the  Supreme  Court  of  the  United 
States,  in  cqnstruing  the  fifth  and  sixth  sections  of  the  Judiciary 
Act  of  1891,  among  other  things,  said: 

"The  true  purposes  of  the  act,  as  gathered  from  its  context,  is 
thai  Ihc  writ  of  error  or  the  appeal  may  be  taken  only  after  final 
judgment,  except  in  the  cases  specified  in  section  7  of  the  act. 
When  that  judgment  is  rendered,  the  party  against  whom  it  is 
HMidered  must  elect  whether  he  will  take  his  writ  of  error  or  appeal 
to  the  Supreme  Court  upon  the  (jucstion  of  jurisdiction  alone,  or 
to  the  ('ircuit  ('ourt  of  Appeals  upon  the  whole  case.    If  the  latter, 

1  The  facts  arc  roHtatctl.— Ed. 


Circuit  Courts  of  Appeals  ^  379 

then  the  Circuit  Court  of  Appeals  may,  if  it  deem  proper,  certify 
the  question  of  jurisdiction  to  this  court."  141  U.  S.  661-668,  12 
Sup.  Ct.  118. 

Relying  upon  the  construction  given  in  McLish  v.  Roff,  the  prac- 
tice of  this  court  has  been,  where  an  appeal  or  writ  of  error  has 
been  taken  in  the  whole  case,  and  the  question  of  jurisdiction  in 
the  court  below  has  been  raised,  to  pass  upon  the  question  of  juris- 
diction as  upon  any  other  issue  raised  in  the  case.  And  accord- 
ingly, in  Telephone  Co.  v.  Robinson,  2  U.  S.  App.  148,  1  C.  C.  A. 
91,  48  Fed.  769,  which  was  a  case  in  which  the  jurisdiction  of  the 
Circuit  Court  was  not  apparent  of  record,  this  court  held  that  thq 
jurisdiction  of  the  Circuit  Court  must  appear  affirmatively  in  the 
record,  citing  Insurance  Co.  v.  Rhoads,  119  U.  S.  237,  7  Sup.  Ct. 
193 ;  Timmons  v.  Land  Co.,  139  U.  S.  378,  11  Sup.  Ct.  585 ;  and 
also  held  that,  "where  the  jurisdiction  of  the  Circuit  Court  does 
not  appear  in  the  record,  the  Appellate  Court  will,  on  its  own 
motion,  notice  the  defect,  and  make  disposition  of  the  case  accord- 
ingly;" and  we  then  reversed  the  decree  of  the  Circuit  Court  re- 
manding the  cause  to  the  court  below  with  instructions  to  remand 
to  the  State  Court  from  which  it  was  removed.  And  in  Railway 
Co.  v.  Rogers,  6  C.  C.  A.  403,  57  Fed.  378,  and  in  Tinsley  v.  Hoot, 
2  U.  S.  App.  548,  3  C.  C.  A.  612,  53  Fed.  682,  this  court  followed 
the  same  practice.  In  the  case  of  Carey  v.  Railway  Co.  (recently 
decided,  but  not  yet  officially  reported)  14  Sup.  Ct.  63,  the  Su- 
preme Court  says: 

"The  Judiciary  Act  of  March  3,  1891,  in  distributing  the  appel- 
late jurisdiction  of  the  national  judicial  system  between  the  Su- 
preme Court  and  the  Circuit  Court  of  Appeals  therein  established, 
designated  the  classes  of  cases  in  respect  of  which  each  of  these 
courts  was  to  have  final  jurisdiction  (the  judgments  of  the  latter 
being  subject  to  the  supervisory  power  of  this  court  through  the 
writ  of  certiorari  as  provided),  and  the  act  has  uniformly  been  so 
construed  and  applied  as  to  promote  its  general  and  manifest  pur- 
pose of  lessening  the  burden  of  litigation  in  this  court.  The  fifth 
section  of  the  act  specifies  six  classes  of  cases  in  which  appeals  or 
writs  of  error  may  be  taken  directly  to  this  court,  of  which  we 
are  only  concerned  with  the  first  and  fourth,  which  include  those 
cases  *in  which  the  jurisdiction  of  the  court  is  in  issue.  In  such 
cases  the  question  of  jurisdiction  alone  shall  be  certified  to  the 
Supreme  Court  from  the  court  below  for  decision,'  and  'any  case 
that  involves  the  construction  or  application  of  the  Constitution 
of  the  United  States.'    In  order  to  bring  this  appeal  within  the 


380  Cases  on  Federal  Procedure 

first  of  these  classes,  the  jurisdiction  of  the  Circuit  Court  must 
have  been  in  issue  in  this  case,  and,  as  appeals  or  writs  of  error 
lie  here  only  from  final  judgments  or  decrees,  must  have  been 
decided  against  appellants ;  and  the  question  of  jurisdiction  must 
have  been  certified.  We  do  not  now  say  that  the  absence  of  a  for- 
mal certificate  would  be  fatal,  but  it  is  required  by  the  statute,  and 
its  absence  might  have  controlling  weight  where  the  alleged  issue 
is  not  distinctly  defined." 

Heading  the  fifth  and  sixth  sections  of  the  Act  of  1891  in  the 
light  of  McLish  v.  Roff  and  Carey  v.  Railway  Co.,  and  the  former 
practice  of  this  court,  we  consider  that  the  exclusive  jurisdiction 
of  the  Supreme  Court,  in  any  case  where  the  jurisdiction  of  the 
court  is  in  issue,  only  attaches  when  the  appeal  or  writ  of  error 
is  taken  direct  to  that  court,  and  that,  when  not  so  taken,  but  the 
appeal  or  writ  of  error  is  taken  on  the  whole  case  to  the  Circuit 
Court  of  Appeals,  that  court  is  vested  with  jurisdiction  to  pass 
on  all  the  issues  involved.  As  to  certifying  a  jurisdictional  ques- 
tion to  the  Supreme  Court  in  such  cases,  that  is  only  to  be  done 
when  the  instruction  of  that  court  is  desired  for  the  proper  deci- 
sion of  the  case.  Watch  Co.  v.  Bobbins,  148  U.  S.  266,  13  Sup. 
Ct.  594. 

We  consider,  therefore,  that  we  have  full  jurisdiction  to  pass 
upon  the  first  assignment  of  error  in  this  case.^ 


LAU  OW  BEW  v.  UNITED  STATES. 
Supreme  Court  of  the  United  States.     1892. 
144  V.  S.  47,  12  S.  Ct.  517,  36  L.  Ed.  340. 
Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the  court: 

Before  proceeding  to  dispose  of  this  case  upon  the  merits  the 
question  of  jurisdiction,  although  not  argued  by  counsel,  must 
receive  attention. 

The  Act  of  Congress  of  March  3,  1891,  establishing  Circuit 
Courts  of  Appeals  and  defining  and  regulating  the  jurisdiction  of 
the  courts  of  the  United  States,  26  Stat.  826,  c.  517,  was  passed 
to  facilitate  the  prompt  disposition  of  cases  in  this  court  and  to 
relieve  it  from  the  oppressive  burden  of  general  litigation,  which 

1  Compare  <Mrcfiilly  HaHiinorc  &  O.  R.  Co.  v.  Meyers,  62  Fed.  WQl ,  \M\- 
:',72,  10  C.  C.  A.    IHf),  •18!t,  18  U.  H.  Apj..  r.GJ),  r.77-57S   (1804). 

Hrn  also  Aiiierican  Siif,'ar  IJcrminjj  ('o.  v.  New  Orlians,  181  U.  S.  277,  21 
8.   Ct.   646,  45   L.    E«l.    859    (1901).— Ed. 


I 


Circuit  Courts  of  Appeals  381 

impeded  the  examination  of  eases  of  public  concern,  and  operated 
to  the  delay  of  suitors.    In  re  Woods,  143  U.  S.  202.     *     *     * 

Under  section  5,  appeals  or  writs  of  error  may  be  taken  from 
the  Circuit  Courts  directly  to  this  court  in  six  specified  classes  of 
cases,  namely: 

"(1)  In  any  case  in  which  the  jurisdiction  of  the  court  is  in 
issue ;  in  such  cases  the  question  of  jurisdiction  alone  shall  be  cer- 
tified to  the  Supreme  Court  from  the  court  below  for  decision. 
(2)  From  the  final  sentences  and  decrees  in  prize  causes.  (3)  In 
cases  of  conviction  of  a  capital  or  otherwise  infamous  crime. 
(4)  In  any  case  that  involves  the  construction  or  application  of 
the  Constitution  of  the  United  States.  (5)  In  any  case  in  which 
the  constitutionality  of  any  law  of  the  United  States,  or  the  valid- 
ity or  construction  of  any  treaty  made  under  its  authority,  is 
drawn  in  question.  (6)  In  any  case  in  which  the  Constitution  or 
law  of  a  State  is  claimed  to  be  in  contravention  of  the  Constitution 
of  the  United  States." 

By  section  6,  the  Circuit  Courts  of  Appeals  "shall  exercise  ap- 
pellate jurisdiction  to  review  by  appeal  or  by  writ  of  error,"  final 
decisions  of  the  Circuit  Courts  "in  all  cases  other  than  those  pro- 
vided for  in  the  preceding  section  of  this  act,  unless  otherwise 
provided  by  law."  The  appellate  jurisdiction  not  vested  in  this 
court  was  thus  vested  in  the  court  created  by  the  act,  and  the 
entire  jurisdiction  distributed.    McLish  v.  Roff,  141  U.  S.  661,  666. 

The  words  "unless  otherwise  provided  by  law"  were  manifestly 
inserted  out  of  abundant  caution,  in  order  that  any  qualification 
of  the  jurisdiction  by  contemporaneous  or  subsequent  acts  should 
not  be  construed  as  taking  it  away  except  when  expressly  so  pro- 
vided. Implied  repeals  were  intended  to  be  thereby  guarded 
against.  To  hold  that  the  words  referred  to  prior  laws  would 
defeat  the  purposes  of  the  act  and  be  inconsistent  with  its  context 
and  its  repealing  clause.^ 


KEYSER  V.  LOWELL. 

Circuit  Court  of  Appeals,  Eighth  Circuit.    1902, 

117  Fed.  400,  54  C.  C.  A.  574. 

Sanborn,  Circuit  Judge,  after  stating  the  case,  delivered  the 
opinion  of  the  court. 

1  Only  a  portion  of  the  opinion  is  reprinted. — Ed. 


382  Cases  on  Federal  Procedure 

This  case  involves  the  question  whether  or  not  a  statute  of  the 
State  of  Colorado  is  obnoxious  to  section  1  of  article  4  of  the  Con- 
stitution of  the  United  States,  but  the  jurisdiction  of  the  court 
below  was  not  invoked  upon  that  ground.  The  sole  ground  upon 
which  the  jurisdiction  of  the  Circuit  Court  originally  attached 
was  the  diversity  of  the  citizenship  of  the  parties.  The  constitu- 
tional question  was  not  presented  or  suggested,  and  it  did  not 
arise  until  the  answer  was  interposed.  This  court,  therefore,  has 
jurisdiction  to  hear  and  determine  the  question  of  the  validity 
of  the  statute,  in  view  of  the  Constitution  of  the  United  States, 
as  well  as  the  other  questions  in  the  case,  and  its  decision  of  each 
of  these  questions  will  be  final.  Where  the  jurisdiction  of  the 
Circuit  Court  originally  attaches  solely  by  rea:son  of  diverse  citi- 
zenship and  a  constitutional  question  subsequently  arises,  the  Cir- 
cuit Court  of  Appeals  has  jurisdiction  to  review  the  decision  of 
that  question  below  and  to  finally  determine  it.^ 


ROOT  V.  MILLS. 

Circuit  Court  of  Appeals,  Seventh  Circuit.     1909. 

168  Fed.  688,  94  C.  C.  A.  174. 

Grosscup,  Circuit  Judge. — The  bill  in  the  court  below  asked 
that  appellants,  trustees  under  the  will  of  Augustin  K.  Root  and 
executors  thereof,  be  removed,  and  that  pending  action  of  the 
court  upon  such  bill,  a  receiver  be  appointed  to  take  charge  of 
the  assets  of  the  estate  until  other  trustees  might  be  appointed. 
The  bill  was  filed  October  25,  1907,  and  upon  the  same  day,  upon 
an  ex  parte  hearing,  a  receiver  was  appointed,  who  took  posses- 
sion of  the  property  therein  named. 

November  2d,  following,  the  defendants  by  their  solicitors, 
movod  the  court  to  so  modify  the  foregoing  order  that,  pending 
the  final  determination  of  the  case,  tlic  trustees  might  be  per- 
mit t«'d    to   collect,   receive  and   distribute  to  the   parties   entitled 

1  Only   .1   portion    of    tlio    opinion    is   royirintod. 

Notico  jdirticiil.'iriy  Pikes  J'oak  Pow(>r  Co.  v.  City  of  Colorado  Springs, 
lOr)  Fed.  1,  f)-7,  J't  C.  C.  A.  ;V.V.\,  ■^•^H-•.VM^  (IDOO)  td  tho  offoct  that,  though 
tho  cn^c  is  one  whirh  is  controllfd  ' '  l>y  the  constnu'tion  or  :if)pliration  of 
th«  Coiislifiition  of  the  I'nitrd  Htatcs,"  the  Circuit  Court  of  Appeals  "may 
decidf    the    \vii(jje   cqhc    in    tlic    first    instfinrp. ' ' — Ed. 


Circuit  Courts  of  Appeals  383 

thereto  under  the  will,  the  income  of  the  securities  belonging  to 
the  estate;  which  motion  was,  on  the  9th  day  of  November  fol- 
lowing, after  argument  of  counsel,  duly  denied,  the  defendants 
on  the  preceding  day  having  entered  their  general  appearance 
in  the  cause. 

December  5th,  following,  defendants  filed  their  motion  to  dis- 
charge the  receiver  and  dissolve  the  injunction  (an  injunction 
merely  incidental  to  the  receivership),  which  motion  was  over- 
ruled on  the  21st  day  of  February,  1908;  and  thereupon,  on  the 
2d  day  of  March  following,  defendants  filed  their  application  for 
appeal.  The  motion  under  consideration  is  to  dismiss  this  appeal 
upon  the  ground  that  it  was  not  taken  within  thirty  days  after 
the  entry  of  the  decree  appealed  from. 

Section  7  of  the  Act  approved  April  14,  1906  (34  Stat.  116,  c. 
1627  (U.  S.  Comp.  St.  Supp.  1907,  p.  209)  provides: 

"That  where  upon  a  hearing  in  equity  in  a  district  or  in  a 
Circuit  Court,  or  by  a  judge  thereof  in  vacation,  an  injunction 
shall  be  granted  or  continued,  or  a  receiver  appointed,  by  an 
interlocutory  order  or  decree,  in  any  case,  an  appeal  may  be  taken 
from  such  interlocutory  order  or  decree  granting  or  continuing 
such  injunction,  or  appointing  such  receiver,  to  the  Circuit  Court 
of  Appeals :  provided  that  the  appeal  must  be  taken  within  thirty 
days  from  the  entry  of  such  order  or  decree,  and  it  shall  take 
precedence  in  the  Appellate  Court." 

This  section,  in  the  interest  of  a  more  liberal  right  of  appeal,  is 
a  distinct  departure  from  the  policy  of  appeals  under  the  older 
Chancery  rules;  but  is  intended  to  be  safeguarded  against  abuse 
by  the  provisions  looking  to  promptitude  of  action — a  provision 
that  is  intended  to  be  strictly  enforced. 

The  contention  of  appellee  is  that  the  date  of  * '  entry  of  the  order 
appointing  the  receiver"  is  October  21st,  1907.  Joseph  Dry  Goods 
Co.  et  al.  V.  Hecht,  120  Fed.  760,  57  C.  C.  A.  64  (Circuit  Court 
of  Appeals,  5th  Circuit).  The  contention  of  appellants  is,  that 
the  date  of  such  "entry"  is  February  21st,  1908,  the  day  when 
the  motion  to  dissolve  the  order  was  overruled. 

We  cannot  concur  in  either  of  these  views.  What  constitutes 
the  "entry"  of  the  order  within  the  meaning  of  section  7,  the 
date  of  which  determines  the  time  for  the  appeal,  depends,  it  seems 
to  us,  upon  what  meaning  is  to  be  attached  to  the  preceding 
phrase  "Where,  upon  a  hearing  of  equity" — a  phrase  that  de- 
termines the  conditions  on  which  the  order  is  to  be  entered. 

A  "hearing  in   equity,"  technically,   is  the  trial  of  the  case. 


384  Cases  on  Federal  Procedure 

including  the  introduction  of  evidence,  the  argument  of  the  solic- 
itors, and  the  decree  of  the  chancellor.  10  Encyclopedia  Pleading 
and  Practice,  8. 

This,  however,  is  the  "hearing  in  equity"  that  results  in  a  final 
decree. 

Now  it  seems  to  us  that  within  the  proceedings  that,  taken  as 
a  whole,  constitute  a  hearing  in  equity  resulting  in  a  final  decree, 
there  is  recognized  by  section  7  to  be  other  proceedings,  inter- 
locutory with  reference  to  the  final  decree,  but  complete  for  the 
purposes  of  the  appeal  allowed,  viz.:  the  particular  proceedings 
out  of  which  grow  an  interlocutory  order;  and  that  in  such  par- 
ticular proceeding,  within  the  larger  proceeding,  the  "hearing 
in  equity"  provided  in  section  7,  was  meant  to  be  the  hearing 
of  the  motion,  the  introduction  of  evidence  thereon  by  afiidavit 
or  otherwise,  the  argument  of  solicitors,  and  the  order  of  the  chan- 
cellor. Nothing  short  of  that,  it  seems  to  us,  can  be  said  to  be  a 
"hearing  in  equity"  upon  the  particular  proceeding  leading  up 
to  the  appealable  order ;  and  nothing  beyond  that,  it  seems  to  us, 
could  have  been  contemplated  by  this  section. 

Let  us  apply  that  view,  then,  to  the  case  in  hand.  Undoubtedly 
the  court  has  power,  ex  parte,  to  enter  an  order  granting  an  in- 
junction in  the  nature  of  a  stay,  or  appointing  a  receiver,  which 
becomes  at  once  an  enforceable  order  in  the  case.  But  such  order 
is  not,  in  our  judgment,  "upon  a  hearing  in  equity"  within  the 
meaning  of  section  7.  There  has  in  fact  on  such  order  been  no 
"hearing" — no  opportunity  on  the  part  of  one  of  the  parties 
affected  to  introduce  evidence,  or  to  argue  the  cause.  But  none 
the  less  it  is  an  order — an  order  substantially  ripening  into  one 
"upon  a  hearing  in  equity,"  whenever  the  parties  affected  have 
been  brought,  or  have  come,  into  court,  and  an  opportunity  has 
been  given  them  either  to  acquiesce  in  the  order  or  to  oppose  it 
— the  order  to  be  considered  "entered"  within  the  meaning  of  the 
statutes  the  moment  that  it  has  been  acquiesced  in,  or  has  been 
unsuccessfully  opposed.  Indeed  any  other  interpretation  of  this 
section,  enacted  in  the  interest  of  a  more  liberal  policy  of  appeal, 
\n\\  uj)on  the  strict  condition  of  promptitude,  would  have  the  effect 
either  of  enabling  a  party  to  cut  off  his  antagonist's  right  of 
appeal  by  not  adusing  him  for  thirty  days  of  the  order  entered, 
or  of  enabling  the  party  proceeded  against  to  cut  off  the  moving 
party  from  his  right  of  having  the  appeal  promptly  taken,  by  not 
movinjr  for  a  dissolntinn  of  Hip  order  until   it  suited  liis  purposes 


Circuit  Courts  op  Appeals  385 

to  do  so.    And  applying  the  section  as  we  here  interpret  it  the  ap- 
peal must  be  dismissed,  as  appellants,  in  their  motion  of  Novem- 
ber 2d,  seem  to  have  clearly  acquiesced  in  the  order  appealed  from 
as  a  standing  interlocutory  order  in  the  cause. 
The  appeal  is  dismissed.^ 


DUDLEY  E.  JONES  CO.  v.  MTINGER  IMPROVED  COTTON 
MACH.  MFG.  CO. 

Circuit  Court  of  Appeals,  Fifth  Circuit.     1892. 

50  Fed.  785,  1  C.  C.  A.  668. 

Pardee,  Circuit  Judge. — This  cause  is  again  brought  before 
the  court  on  an  application  for  a  rehearing  and  upon  a  motion 
to  vacate  all  proceedings  had  in  this  cause  in  this  court,  and  dismiss 
the  appeal  herein  for  want  of  jurisdiction,  on  the  ground  that  the 
decree  of  the  court  below  sought  to  be  reviewed  in  this  case  was 
neither  a  final  decree,  from  which  an  appeal  would  lie  to  this 
court  under  the  sixth  section  of  the  Judiciary  Act  of  1891,  nor 
yet  such  an  interlocutory  order  or  decree  that  an  appeal  would 
lie  under  the  seventh  section  of  the  said  act.  The  case  was  heard 
in  this  court  upon  the  merits  without  objection  on  the  part  of  the 
appellee,  and  without  a  critical  examination  on  the  part  of  the 
court  as  to  the  character  of  the  decree  appealed  from.  In  fact, 
appellee  in  his  brief  expressly  states: 

"It  is  the  desire  of  the  appellee  that  this  cause  be  heard  upon 
its  merits,  and  we  do  not,  therefore,  wish  to  take  advantage  of 
any  irregularities  which  may  have  occurred  in  bringing  the  case 
up  or  of  any  omission  to  assign  errors.  *  *  *  As  the  case 
stands,  it  must  be  substantially  treated  as  a  rehearing  at  the  Cir- 
cuit, and  for  this  reason  the  argument  is  more  diffusive  than  it 
otherwise  would  be,  as  it  involves  a  re-presentation  of  the  entire 
case,  without  any  direction  as  to  special  points  or  findings  by  the 
court  below." 

1  For  other  cases  in  which  it  was  held  there  was  a  hearinor  in  equity,  see 
Taylor  v.  Breese,  163  Fed.  678,  683-684  (1908);  Northern  Pac.  Ey.  Co.  v. 
Pacific  Coast  Lumber  Mfrs.   Ass'n,   165   Fed.   1,   5    (1908). 

See,  also,  Pack  v.  Carter,  223  Fed.  638,  640-641,  139  C. -C.  A.  184,  186- 
187   (1915).— Ed. 

Wheaton  C.  F.  P.— 25 


386  Cases  on  Federal  Procedure 

An  examination  of  the  decree  rendered  by  the  court  below  shows 
that,  while  it  adjudges  the  validity  of  the  patent  sued  on  and 
directs  an  injunction  termed  "perpetual"  against  the  defendants 
as  infringers,  it  refers  the  matter  to  a  master  for  taking  an  ac- 
count. It  is  well  settled  that  such  a  decree  is  not  a  final  decree 
from  which  an  appeal  could  be  taken,  or  of  which  this  court  would 
have  jurisdiction,  under  the  sixth  section  of  the  Judiciary  Act 
of  1891.  Iron  Co.  v.  Martin,  132  U.  S.  91,  10  Sup.  Ct.  Rep.  32, 
and  cases  there  cited.  We  are,  however,  of  the  opinion  that  it  is 
an  interlocutory  decree  granting  an  injunction,  from  which  an 
appeal  would  lie  under  the  seventh  section  of  the  said  Judiciary 
Act. 

An  interlocutory  decree  is : 

"When  the  consideration  of  the  particular  question  to  be  de- 
termined, or  the  further  consideration  of  the  cause  generally,  is 
reserved  till  a  future  hearing."  Daniell,  Ch.  Pr.   (5th  Ed.)   986. 

Again : 

"In  fact,  till  a  decree  has  been  enrolled,  and  thereby  become 
a  record,  it  is  liable  to  be  altered  b}'  the  court  itself,  upon  a  re- 
hearing, while  a  decree  which  has  not  been  enrolled  is  not  sus- 
ceptible to  alteration,  except  by  the  house  of  lords  or  by  bill  of 
review.  For  this  reason  it  is  that  a  decree  which  has  not  been 
enrolled,  although  it  is,  in  its  nature,  a  final  decree,  is  considered 
merely  as  interlocutory,  and  cannot  be  pleaded  in  bar  to  another 
suit  for  the  same  matter."    Id.  1019. 

In  the  note  to  page  986,  supra,  the  subject  is  considered  at  some 
length,  to  the  effect  that  the  courts  have  not  laid  down  any  satis- 
factory definition  of  what  is  an  "interlocutory  decree."  It  is  said 
that  the  difficulty  is  in  the  subject  itself,  for,  by  various  grada- 
tions, the  interlocutory  decree  may  be  made  to  approach  the  final 
decree  until  the  line  of  discrimination  becoinos  too  fine  to  be  readily 
perceived.  It  is  further  said  that  the  difficulty  has  been  increased 
by  the  fact  that  the  definition  of  a  final  decree  has  often  been 
made  to  turn,  not  upon  the  nature  of  the  determination,  but  upon 
the  construction  of  the  statutes  regulating  appeals.  An  allow- 
ance of  an  appeal  from  an  interlocutory  order  or  decree,  granting 
or  continuing  an  injunction  in  an  c(|uity  cause  under  the  seventh 
section  of  the  Judiciary  Act  of  1891,  is  a  now  feature  of  the 
practice  in  the  United  States  courts.  IJeing  of  a  highly  remedial 
nature,  it  ou^ht  to  be  construed  so  as  to  give  full  force  to  the  in- 


Circuit  Courts  of  Appeals  387 

tention  of  the  lawmaker.  The  mischief  to  be  remedied  by  the  act 
was  that  injunctions  which  deprived  parties  of  the  possession  and 
control  of  property,  or  compelled  enforced  action  in  the  use  of 
property,  were,  under  the  practice  of  the  courts,  frequently  ren- 
dered long  before  the  final  hearing  in  the  case, 'and  operated,  to 
a  great  extent,  in  the  nature  of  execution  before  judgment.  This 
mischief  was  as  great  in  patent  cases,  where  parties  on  hearings 
preliminary  to  the  final  decree  were  enjoined  pending  long  and 
tedious  examination  in  the  matter  solely  of  accounting,  as  in  any 
other  cases  of  preliminary  injunction.  The  case  of  Richmond  v. 
Atwood,  decided  in  the  first  Circuit,  and  reported  in  48  Fed.  Rep. 
910,  was  a  case  on  all  fours  with  the  present  one,  and  therein  the 
court  took  and  exercised  jurisdiction,  apparently  without  ques- 
tion. The  suit  was  one  for  an  infringement  of  letters  patent 
wherein  an  appeal  was  taken  from  a  decree  sustaining  the  patent, 
holding  the  defendant  to  be  an  infringer,  awarding  an  injunction, 
and  ordering  an  account.  This  court  having  jurisdiction  of  the 
appeal  under  the  seventh  section,  and  having  jurisdiction  under 
the  sixth  section,  if  a  final  decree  had  been  rendered  in  the  Cir- 
cuit Court,  it  would  seem  to  have  been  competent  for  the  appellee 
to  waive  a  formal  final  decree,  and  submit  the  cause  of  this  court 
on  the  merits.  Our  conclusion  in  the  matter  is  that  in  this  case 
the  Circuit  Court  of  Appeals  was  seized  of  jurisdiction  under  the 
seventh  section  of  the  Act  of  1891,  and  that,  as  the  appellee  sub- 
mitted the  case  without  objection,  it  is  now  too  late  to  question 
the  jurisdiction  of  the  court,  even  if  doubtful. .  After  re-examina- 
tion of  the  case,  and  a  consideration  of  the  briefs  lately  filed,  we 
find  no  reason  to  disturb  our  former  conclusions  as  to  novelty  of 
appellee's  patent,  or  on  the  question  of  appellant's  infringement. 
Our  decree,  however,  was  perhaps  too  broad,  and  should  be  modi- 
fied. 

The  order  of  the  court  is  that  the  motion  to  vacate  the  pro- 
ceedings in  this  cause,  and  to  dismiss  the  appeal  for  want  of  ju- 
risdiction, be  denied ;  that  our  former  decree,  remanding  the  cause, 
with  directions  to  dismiss  the  bill,  with  costs,  be,  and  the  same  is, 
modified  so  as  to  direct  the  cause  to  be  remanded  to  the  Circuit 
Court,  with  instructions  to  dissolve  and  dismiss  the  injunction 
granted  in  said  court ;  and  that  appellee  pay  the  costs,  and  the 
rehearing  applied  for  be  denied.^ 

1  See  also  Pennsylvania  Co.,  etc.,  v.  Jacksonville,  T.  &  K.  W.  Rv.  Co., 
55  Fed.   131,   136    (1893).— Ed. 


388  *  Cases  on  Federal  Procedure 

DREUTZER  v.  FRANKFORT  LAND  CO. 

Circuit  Court  of  Appeals,  Sixth  Circuit.     1895. 

65  Fed.  642,  13  C.  C.  A.  73. 

The  Circuit  Court  made  an  order  on  January  23rd,  restrain- 
ing defendants  from  prosecuting  certain  proceedings  at  law,  upon 
condition  that  plaintiffs  should  file  a  bond  to  pay  any  judgment 
against  them  in  the  suit,  in  which  the  injunction  was  granted, 
such  injunction  to  continue,  if  the  bond  was  filed  until  the  further 
order  of  the  court.  The  bond  was  filed  in  due  time.  Subsequently, 
on  March  2d,  defendant  moved  to  dissolve  the  injunction,  upon 
the  same  grounds  upon  which  he  had  originally  opposed  it,  and 
the  additional  ground  that  the  sureties  on  the  bond  were  insuffi- 
cient. This  motion  was  denied  by  an  order  entered  March  9th. 
An  appeal  was  taken  from  this  order  on  April  6th.^     *     *     * 

Taft,  Circuit  Judge  (after  stating  the  facts). — Section  7  of 
the  act  establishing  the  Circuit  courts  of  appeals  is  as  follows: 

"That  where  upon  a  hearing  in  equity  in  a  District  Court,  or 
in  an  existing  Circuit  Court,  an  injunction  shall  be  granted  or 
continued  by  an  interlocutory  order  or  decree,  in  a  cause  in  which 
an  appeal  from  a  final  decree  may  be  taken  under  the  provisions 
of  this  act  to  the  Circuit  Court  of  Appeals,  an  appeal  may  be 
taken  from  such  interlocutory  order  or  decree  granting  or  con- 
tinuing such  injunction  to  tbe  Circuit  Court  of  Appeals.  Pro- 
vided, that  tbe  appeals  must  be  taken  within  thirty  days  from  the 
entry  of  such  order  ni-  decree,  and  it  shall  take  precedence  in  the 
Appellate  Court ;  and  the  proceedings  in  other  respects  in  the  court 
below  shall  Jiot  be  stayed  unless  otherwise  ordered  by  that  court 
during  the  pendency  of  such  appeal."    11  C.  C.  A.  xv. 

The  section  introduced  into  Federal  appellate  procedure  is  a 
novelty.  Before  enactment,  there  was  no  method  of  reviewing  on 
appeal  an  interlocutory  order  or  decree  of  the  District  or  Circuit 
courts.  Congress  accompanied  this  remedial  provision  with  the 
condition  that  it  should  be  taken  advantage  of  by  the  aggrieved 
party  within  30  days  after  it  accrued.  This  condition  is  to  be 
givnn  ctTcct,  and  is  nf)t  to  he  ma(U'  nugatory  by  a  construction 
wliich  would  put  it   in  tlif  power  of  the  aggrieved  party  to  extend 

1  Tlif    fnct.H   arc   roHtatcd   an   foiiiul    in   the   Hyllabus. — Ed. 


Circuit  Courts  of  Appeals  389 

the  limitation  indefinitely.  It  is  clear,  therefore,  that  when,  after 
a  hearing  of  both  sides,  an  injunction  has  been  granted  by  the 
Circuit  Court  to  continue  in  force  for  a  fixed  time, — as,  for  ex- 
ample, until  a  hearing  on  the  merits, — the  enjoined  party  cannot, 
after  the  expiration  of  30  days  from  the  order  granting  the  in- 
junction, acquire  a  new  right  of  appeal  by  the  filing  of  a  motion 
to  dissolve  the  injunction,  and  an  order  of  the  court  denying  the 
motion.  Such  an  order  neither  grants  nor  continues  the  injunc- 
tion within  the  meaning  of  section  7  of  the  act.  Even  if  no  such 
order  is  made,  the  injunction  remains  in  force  until  the  time  fixed 
in  the  order  granting  it  for  its  expiration.  And  the  denial  of 
the  motion  to  dissolve  the  injunction  adds  nothing  to  its  force 
or  effect.  The  question  may  be  more  doubtful  when  the  injunc- 
tion is  granted  until  the  further  order  of  the  court.  It  may  be 
argued,  with  some  plausibility,  that  the  form  of  the  order  impliedly 
invites  a  further  test  of  the  validity  of  the  order  by  a  motion  to 
dissolve,  but  we  are  not  disposed  so  to  construe  it  when  it  appears 
that  a  full  hearing  has  been  had  by  the  court  on  affidavits  and 
argument.  "We  think  that  an  injunction  until  further  order  of 
the  court  granted  after  full  hearing  is,  in  effect,  the  same  as  one 
granted  until  the  case  can  be  heard  on  its  merits,  and  that  a  motion 
to  dissolve  such  an  injunction  is,  in  effect,  a  mere  motion  to  rehear 
a  question  already  decided.  Unless  such  motion  to  rehear  is  made 
within  the  time  within  which  an  appeal  can  be  taken,  we  think 
it  should  have  no  effect  to  enlarge  the  limitation.  It  is  not  at 
all  difficult  to  satisfy  the  meaning  of  the  expression,  "order  con- 
tinuing an  injunction."  It  generally  happens  that  a  preliminary 
injunction  expires  at  the  entry  of  a  decree  on  the  merits.  Such 
a  decree  may  grant  a  perpetual  injunction,  'and  yet,  because  of 
an  order  referring  questions  of  damages  to  a  master,  still  be  only 
interlocutory  in  its  character,  and  not  reviewable  as  a  final  appeal 
until  the  coming  in  of  the  master's  report,  and  its  confirmation 
by  the  court.  Blount  v.  Societe  Anonyme,  6  U.  S.  App.  335,  53 
Fed.  98.  Such  a  decree  would  be  an  interlocutory  decree  con- 
tinuing an  injunction.  So,  too,  a  court  may,  for  good  reasons, 
grant  an  injunction  until  the  next  term  of  the  court.  An  order 
giving  the  injunction  force  thereafter  would  be  an  order  continu- 
ing an  injunction,  because,  without  such  order,  the  injunction 
would  stand  dissolved  by  lapse  of  the  time  fixed  in  the  original 
order.  Sections  718  and  719  of  the  Kevised  Statutes  are  as  fol- 
lows: 


390  Cases  on  Federal  Procedure 

Section  718.  ''Whenever  notice  is  given  of  a  motion  for  an 
injunction  out  of  a  Circuit  or  District  Court,  the  court  or  judge 
thereof  may,  if  there  appears  to  be  danger  of  irreparable  injury 
from  delay,  grant  an  order  restraining  the  act  sought  to  be  en- 
joined until  the  decision  upon  the  motion;  and  such  order  may 
be  granted  with  or  without  security,  in  the  discretion  of  the  court 
or  judge." 

Section  719.  "Writs  of  injunction  may  be  granted  by  any  jus- 
tice of  the  Supreme  Court  in  cases  where  they  might  be  granted 
by  the  Supreme  Court,  and  by  any  judge  of  a  Circuit  Court  in 
cases  where  they  might  be  granted  by  such  court.  But  no  justice 
of  the  Supreme  Court,  shall  hear  or  allow  any  application  for 
an  injunction  or  restraining  order  in  any  cause  pending  in  the 
Circuit  to  which  he  is  allotted,  elsewhere  than  within  such  Circuit, 
or  at  such  place  outside  of  the  same  as  the  parties  may  stipulate 
in  writing,  except  when  it  cannot  be  heard  by  the  Circuit  judge 
of  the  Circuit  or  the  District  judge  of  the  District.  And  an  in- 
junction shall  not  be  issued  by  a  District  judge,  as  one  of  the 
judges  of  a  Circuit  Court  in  any  case  where  a  party  has  had  a 
reasonable  time  to  apply  to  the  Circuit  Court  for  the  writ;  nor 
shall  any  injunction  so  issued  by  a  District  judge  continue  longer 
than  to  the  Circuit  Court  next  ensuing,  unless  so  ordered  by  the 
Circuit  Court." 

Thus  it  appears  that  an  injunction  granted  by  a  District  judge 
as  a  member  of  the  Circuit  Court,  after  a  hearing  in  chambers, 
will  not  continue  longer  than  to  the  next  session  of  the  Circuit 
Court.  If  the  Circuit  Court  continues  the  force  of  the  injunc- 
tion, its  action  is  an  order  or  decree  continuing  an  injunction, 
and  an  appeal  may  be  taken  from  it  within  30  days  therefrom. 
It  is  not  necessary  for  us  to  decide  whether  a  restraining  order 
issued  ex  parte  under  section  718  to  continue  in  force  till  the 
decision  on  the  motion  for  a  preliminary  injunction  is  appeal- 
able, though  we  are  inclined  to  think  that  it  is  not,  because  ap- 
peals are  permitted  only  to  orders  of  injunction;  and  the  fore- 
going sections  suggest  a  statutory  terminology  in  which  a  tem- 
porary restraining  order  issued  rx  parte  is  to  be  distinguished 
from  an  order  of  injunction,  though,  of  course,  their  operation 
and  effect  are  quite  the  same.  I\Tore  than  this,  the  appeal  is  al- 
lowed from  an  order  granting  an  injunction  "upon  a  hearing  in 
equity,"  which  woukl  hardly  describe  an  order  made  on  an  ex 
parte  application.     An  order  of  injunction,  issued  on  a  motion 


Circuit  Courts  op  Appeals  391 

after  notice,  though  preceded  by  a  temporary  restraining  order 
issued  under  section  718,  would  therefore  be  an  order  "granting" 
an  injunction,  rather  than  an  order  continuing  it.  In  the  light 
of  the  foregoing  construction  of  section  7  of  the  Circuit  Court 
of  Appeals  Act,  we  have  little  difficulty  in  holding  that  this  appeal 
was  not  brought  in  time.  The  order  granting  the  injunction  was 
made,  after  full  hearing,  on  January  23,  1894,  and  was  operative 
from  that  date  without  further  action  of  the  court,  though  it  was 
liable  to  be  defeated  in  case  the  complainant  should  make  default 
in  giving  the  bond  required.  That  order  was  certainly  appealable 
under  section  7.  The  time  within  which  the  appeal  could  be  al- 
lowed expired  30  days  thereafter.  No  motion  to  rehear  the  issue 
decided  or  to  dissolve  the  injunction  was  made  within  that  time. 
The  injunction  was  issued  on  condition  of  the  execution  of  a  bond 
with  approved  sureties.  The  bond  was  filed  February  5th,  with 
a  certificate  of  the  sufficiency  of  the  sureties  by  the  clerk  and 
master  of  the  State  Chancery  Court  of  the  county  where  the 
sureties  lived.  A  motion  was  then  filed,  March  2,  1894,  on  the 
same  grounds  upon  which  the  granting  .of  the  injunction,  Janu- 
ary 23,  1894,  had  been  resisted  and  on  the  additional  ground  that 
the  bond  filed  did  not  comply  with  the  order  of  the  court,  because 
insufficient.  This  last  ground  was  addressed  to  the  discretion  of 
the  court,  and  could  hardly  be  the  subject  of  review  here.  The 
bond  having  been  held  sufficient,  the  order  of  injunction  must 
be  considered  as  in  effect  from  the  date  of  entry,  because  the  con- 
dition of  its  granting  had  been  complied  with.  The  order  denying 
the  motion  to  dissolve  did  not  continue  the  injunction.  Without 
such  ruling  by  the  court,  after  the  filing  of  the  bond,  the  injunc- 
tion would  have  remained  in  force.  The  necessity  for  the  ruling 
of  the  court  arose,  not  by  reason  of  the  order  of  injunction,  but 
by  reason  of  the  motion  to  dissolve.  It  follows  that  the  order  of 
March  9,  1894,  was  not  an  order  continuing  an  injunction,  and 
that  no  appeal  lay  therefrom  under  the  seventh  section  of  the  Cir- 
cuit Court  of  Appeals  Act,  and  that,  though  the  order  of  January 
23d  was  appealable,  the  time  for  allowing  the  appeal  expired 
more  than  30  days  before  this  appeal  was  allowed.  This  requires 
us  to  dismiss  the  appeal  without  considering  the  assignments  of 
error,  and.  it  is  so  ordered.** 

2  In  granting  an  interlocutory  injunction  the  court  need  not  use  the 
technical  words  "restrain  and  enjoin."  Griesa  v.  Mutual  Life  Ins.  Co., 
165  Fed.  48,  50,  91  C.  C.  A.  86,  88    (1908).— Ed. 


392  Cases  on  Federal  Procedure 

MIERICAN  GRAIN  SEPARATOR  CO.  v.  TWIN  CITY 
SEPARATOR  CO. 

Circuit  Court  of  Appeals,  Eighth  Circuit.     1912. 

202  Fed.  202,  120  C.  C.  A.  644. 

Sanborn,  Circuit  Judge.     *    *    * 

(1)  There  is  force  in  the  argument  that  the  hearing  on  the 
motion  to  dissolve  is  only  a  rehearing  of  the  motion  for  an  in- 
junction, and  an  order  denying  a  rehearing  is  not  appealable. 
But  there  is  no  exception  in  the  statute  of  orders  refusing  to  dis- 
solve injunctions  which  rest  on  mere  rehearings  of  motions  to  grant 
them  from  the  general  declaration  of  the  Congress  that: 

"Where,  upon  a  hearing  in  equity  in  a  District  Court,  or  by 
a  judge  thereof  in  vacation,  *  *  *  an  application  to  dissolve 
an  injunction  shall  be  refused,  *  *  *  an  appeal  may  be 
taken  from  such  interlocutory  order  or  decree  *  *  *  refusing 
to  dissolve  an  injunction."    36  Stat.  c.  231,  §  129,  p.  1134. 

And  the  fact  that  Congress  made  no  such  exception  raises  a 
conclusive  legal  presumption  that  it  intended  to  make  none,  and 
it  is  not  the  province  of  the  courts  to  do  so.^ 


SMITH  V.  VULCAN  IRON  WORKS. 

Supreme  Court  of  the  United  States.    1897. 

165  V.  S.  518,  17  S.Ct.  407,  41  L.  Ed.  810. 

Mr.  Justice  Gray,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

The  Act  of  I\rarch  3,  1891,  c.  517,  establishing  Circuit  Courts 
of  Appeals,  after  providing  in  section  5,  for  appeals  from  the  Cir- 
cuit Courts  and  District  Courts  directly  to  this  court  in  certain 
classes  of  cases;  and,  in  section  G,  for  appeals  from  final  decisions 
of  those  courts  to  the  Circuit  Court  of  Appeals  in  all  other  cases, 
including  cases  arising  under  tlic  patent  law;  further  provides,  in 

1  Only  ft  portion  of  thf  opinion  is  r('j)rinto(l. — Ed. 


Circuit  Courts  of  Appeals  393 

section  7,  that  "where,  upon  a  hearing  in  equity  in  a  District 
Court,  or  in  an  existing  Circuit  Court,  an  injunction  shall  be 
granted  or  continued  by  an  interlocutory  order  or  decree,  in  a 
cause  in  which  an  appeal  from  a  final  decree  may  be  taken  under 
the  provisions  of  this  act  to  the  Circuit  Court  of  Appeals,  an  ap- 
peal may  be  taken  from  such  interlocutory  order  or  decree  grant- 
ing or  continuing  such  injunction  to  the  Circuit  Court  of  Appeals : 
Provided,  that  the  appeal  must  be  taken  within  thirty  days  from 
the  entry  of  such  order  or  decree,  and  it  shall  take  precedence  in 
the  Appellate  Court;  and  the  proceedings  in  other  respects  in 
the  court  below  shall  not  be  stayed,  unless  otherwise  ordered  by 
that  court,  during  the  pendency  of  such  appeal."     26  Stat.  828. 

The  questions  presented  by  each  of  these  cases  are  whether,  in 
a  suit  in  equity  for  the  infringement  of  a  patent,  an  appeal  to 
the  Circuit  Court  of  Appeals  from  an  interlocutory  order  or  de- 
cree of  the  Circuit  Court,  granting  an  injunction,  and  referring 
the  case  to  a  master  to  take  an  account  of  damages  and  profits, 
may  be  from  the  whole  order  or  decree,  or  must  be  restricted  to 
that  part  of  it  which  grants  the  injunction ;  and  whether  the  Cir- 
cuit Court  of  Appeals,  upon  such  an  appeal,  may  consider  and 
decide  the  merits  of  the  case,  and,  if  it  decides  them  in  the  de- 
fendant's favor,  may  order  the  bill  to  be  dismissed. 

Upon  these  questions  there  has  been  some  diversity  of  opinion 
among  the  Circuit  Courts  of  Appeals  of  the  different  Circuits. 
But  those  courts  have  now  generally  concurred  in  taking  the 
broader  view  of  the  appeal  itself,  and  of  the  power  of  the  Ap- 
pellate Court. 

In  the  earliest  of  such  appeals,  the  eases  were  examined  on  the 
merits,  and,  upon  a  reversal  of  the  order  or  decree  appealed  from, 
the  authority  to  direct  the  bill  to  be  dismissed  was  assumed,  with- 
out question,  in  the  Circuit  Courts  of  Appeals  for  the  Fifth  Cir- 
cuit: Dudley  E.  Jones  Co.  v.  Hunger  Co.  (December,  1891),  2 
U.  S.  App.  55;  for  the  First  Circuit:  Richmond  v.  Atwood  (Feb- 
ruary, 1892),  5  U.  S.  App.  1;  and  for  the  Second  Circuit:  Amer- 
ican Pail  Co.  V.  National  Box  Co.  (July,  1892),  1  U.  S.  App.  283. 
The  cases  in  the  Fifth  and  First  Circuits  were  afterwards  recon- 
sidered upon  petitions  for  rehearing.  In  the  Fifth  Circuit,  the 
decree  was  modified  so  as  only  to  direct  the  injunction  to  be  dis- 
solved. Dudley  B.  Jones  Co.  v.  Munger  Co.  (May,  1892),  2  U.  S. 
App.  188.  But  in  the  First  Circuit,  the  power  of  the  Circuit 
Court  of  Appeals,  upon  such  an  appeal,  to  consider  the  merits  of 
the  case,  and  to  order  the  bill  to  be  dismissed,  was  maintained. 


394  Cases  on  Federal  Procedure 

after  thorough  discussion  of  the  subject  on  principle  and  authority, 
in  an  opinion  delivered  by  Judge  Aldrich.  Eichmond  v.  Atwood 
(September,  1892),  5  U.  S.  App.  151.     *     *     * 

In  the  Sixth  Circuit,  on  the  other  hand,  in  a  ease  in  which  the 
Circuit  Court  had  entered  an  interlocutory  decree  sustaining  the 
validity  of  the  patent,  adjudging  that  there  was  an  infringement, 
ordering  an  account  of  damages  and  profits,  and  granting  an  in- 
junction, and  had  allowed  an  appeal  from  so  much  only  of  that 
decree  as  granted  the  injunction,  and  denied  an  appeal  from  the 
rest  of  the  decree,  the  Circuit  Court  of  Appeals,  in  an  opinion 
delivered  by  Mr.  Justice  Jackson  (then  Circuit  Judge)  with  the 
concurrence  of  Judge  Tapt  and  Judge  Hammond,  held  that  the 
appeal  had  been  properly  restricted  by  the  Circuit  Court,  and 
that  the  Circuit  Court  of  Appeals  had  no  authority,  upon  this 
appeal,  to  hear  and  fully  determine  the  merits  of  the  case,  but 
that  those  remained,  notwithstanding  the  appeal,  within  the  ju- 
risdiction and  control  of  the  Circuit  courts.  That  decision  was 
made  before  the  second  decision  in  Richmond  v.  Atwood,  5  U,  S. 
App.  151,  above  cited,  had  been  reported,  and  without  reference 
to  the  practice  of  courts  of  chancery  elsewhere.  And  it  was  said 
in  the  opinion :  "It  would  doubtless  have  been  well  if,  in  the 
creation  of  this  court,  the  seventh  section  of  the  act  had  permitted 
or  authorized  an  appeal  from  interlocutory  decrees  sustaining  the 
validity  of  patents  and  adjudging  their  infringement,  so  as  to 
obviate  in  many  cases  the  taking  of  expensive  accounts,  and  the 
delay  incident  thereto."  Columbus  "Watch  Co.  v.  Bobbins  (Oc- 
tober, 1892),  6  U.  S.  App.  275,  281.  A  certificate  thereupon  made 
by  the  Circuit  Court  of  Appeals,  for  the  purpose  of  obtaining 
the  instructions  of  this  court,  was  dismissed  by  this  court,  with 
Mr.  Justice  Jackson's  concurrence,  because  no  question  of  law 
was  distinctly  certified,  and  because  the  Circuit  Court  of  Appeals 
had  decided  the  case  before  granting  the  certificate.    148  U.  S.  266. 

That  decision  was  long  treated  as  settling  the  practice  in  that 
Circuit  on  appeals  from  such  interlocutory  decrees,  and  as  per- 
mitting the  questions  of  validity  and  infringement  to  be  considered 
only  so  far  as  they  effected  the  granting  or  refusal  of  an  injime- 
tion.  Blount  v.  Soci6t6  Anonyme  (November,  1892),  6  U.  S.  App. 
335;  Columbus  Watch  Co.  v.  Robbins  (October,  1894),  22  U.  S. 
App.  601,  634;  Duplex  Press  Co.  v.  Campbell  Press  Co.  (July, 
1895),  37  TT.  S.  App.  250;  Thompson  v.  Nelson  (November,  1895), 
37  IJ.  S.  App.  478;  Goshen  Co.  v.  Hisaell  Co.  (December,  1895, 
and  F.'bruary,  1896),  37  U.  S.  App.  555,  689. 


Circuit  Courts  op  Appeals  395 

But,  at  last,  the  Circuit  Court  of  Appeals  of  the  Sixth  Circuit, 
in  an  able  and  elaborate  opinion  delivered  by  Judge  Lurton,  with 
the  concurrence  of  Judge  Taft  and  Judge  Hammond,  being  a 
majority  of  the  court  which  had  made  the  decision,  in  Columbus 
Watch  Co.  V.  Robbins,  6  U.  S.  App.  275,  above  cited,  expressly 
overruled  that  decision,  and  brought  the  practice  in  that  Circuit 
into  harmony  with  the  practice  prevailing  in  other  circuits.  Bis- 
sell  Co.  V.  Goshen  Co.  (March,  1896),  43  U.  S.  App.  47;  Dueber 
Co.  V.  Robbins  (May,  1896),  43  U.  S.  App.  391.     *     *     * 

The  provision  of  section  7  of  the  Act  of  1891,  that  where  "upon 
a  hearing  in  equity"  in  a  Circuit  Court  "an  injunction  shall  be 
granted  or  continued  by  an  interlocutory  order  or  decree,"  in  a 
cause  in  which  an  appeal  from  a  final  decree  might  be  taken  from 
such  interlocutory  order  or  decree  granting  or  continuing  such 
injunction"  to  that  court,  authorizes,  according  to  its  grammatical 
construction  and  natural  meaning,  an  appeal  to  be  taken  from  the 
whole  of  such  interlocutory  order  or  decree,  and  not  from  that 
part  of  it  only  which  grants  or  continues  an  injunction. 

The  manifest  intent  of  this  provision,  read  in  the  light  of  the 
previous  practice  in  the  courts  of  the  United  States,  contrasted 
with  the  practice  in  courts  of  equity  of  the  highest  authority 
elsewhere,  appears  to  this  court  to  have  been,  not  only  to  permit 
the  defendant  to  obtain  immediate  relief  from  an  injunction,  the 
continuance  of  which  throughout  the  progress  of  the  cause  might 
seriously  affect  his  interests;  but  also  to  save  both  parties  from 
the  expense  of  further  ligitation,  should  the  Appellate  Court  be 
of  opinion  that  the  plaintiff  was  not  entitled  to  an  injunction 
because  his  bill  had  no  equity  to  support  it. 

The  power  of  the  Appellate  Court  over  the  cause  of  which  it 
has  acquired  jurisdiction  by  the  appeal  from  the  interlocutory 
decree,  is  not  affected  by  the  authority  of  the  court  appealed  from, 
recognized  in  the  last  clause  of  the  section,  and  often  exercised 
by  other  courts  of  chancery,  to  take  further  proceedings  in  the 
cause,  unless  in  its  discretion  it  orders  them  to  be  stayed,  pending 
the  appeal.  Hovey  v.  McDonald,  109  U.  S.  150,  160,  161;  In  re 
Haberman  Co.,  147  U.  S.  525,  Messonnier  v.  Kauman,  3  Johns. 
Ch.  66. 

In  each  of  the  cases  now  before  the  court,  therefore,  the  Circuit 
Court  of  Appeals,  upon  appeal  from  the  interlocutory  decree  of 
the  Circuit  Court,  gi'anting  an  injunction  and  ordering  an  account, 
had  authority  to  consider  and  decide  the  case  upon  its  merits. 


396  Cases  on  Federal  Procedure 

and  thereupon  to  render  or  direct  a  final  decree  dismissing  the 


MOREHOUSE  v.  PACIFIC  HARDWARE  &  STEEL  CO. 

Circuit  Court  of  Appeals,  Ninth  Circuit.     1910. 

177  Fed.  337,  100  C.  C.  A.  647. 

Petition  to  review  proceedings  of  the  District  Court  of  the 
United  States  for  the  District  of  Nevada,  in  bankruptcy. 

In  the  matter  of  bankruptcy  proceedings  against  the  Exploration 
Mercantile  Company,  instituted  by  the  Pacific  Hardware  &  Steel 
Company  and  others,  petitioning  creditors,  in  which  an  injunction 
was  issued  against  the  bankrupt  and  others.  An  order  was  there- 
after granted  requiring  petitioners  to  show  cause  why  they  should 
not  be  adjudged  guilty  of  contempt  for  disobeying  the  injunction, 
and  petitioners  filed  a  petition  to  review.    Dismissed.*^     *     *     * 

Gilbert,  Circuit  Judge  (after  stating  the  facts). — The  respond- 
ents move  to  dismiss  the  petition  on  several  grounds,  only  one  of 
which  need  be  considered ;  and  that  is,  that  the  matter  complained 
of  is  not  reviewable  until  the  petitioners  shall  have  been  adjudged 
guilty  of  contempt  in  the  court  below.  If  the  order  which  is  com- 
plained of  were  conceded  to  be  an  order  in  a  bankruptcy  proceed- 
ing proper,  and  of  the  class  of  proceedings  which  are  made  subject 
to  the  supervisory  control  of  this  court,  it  would  seem,  neverthe- 
less, that  it  is  not  reviewable  on  petition  for  the  reason  that  it  is 
not  an  interlocutory  order  which  determines  any  substantial  right 
of  the  petitioners.  An  order  to  show  cause  is  but  the  means  pre- 
scribed by  law  for  bringing  the  defendant  into  court  to  answer  the 
plaintiff's  demands.  ,  It  is  in  the  nature  of  process,  and,  in  juris- 
dictions where  interlocutory  orders  are  made  appealable  if  they 
affect  substantial  rights,  it  is  held  that  an  order  to  show  cause  is 
not  of  that  nature.  Grey  et  al.  v.  Gaither,  Ex'r,  71  N.  C.  55; 
McAuliffo  V.  Coughlin,  105  Cal.  268,  38  Pac.  730. 

But,  conceding  the  order  to  show  cause  to  be  a  judgment  of  the 

lOnly  a  jjortion  of  tho  opinion  is  reprinted. 

Compare  Ea^le  (ila.s.s  &  M<^'.  Co.  v.  IJowe,  245  U.  S.  275,  280-281,  38  S.  Ct. 
80,  H:5,  62  L.  Ed.— (1917).— Kd. 
8  The  petition   ia  omitted. — Ed. 


Circuit  Courts  of  Appeals  397 

court  affecting  a  substantial  right,  we  are  of  the  opinion  that  a 
proceeding  to  punish  for  contempt  one  who  has  committed  an  act 
in  violation  of  an  injunction  of  a  court  of  bankruptcy  in  a  col- 
lateral matter,  as  in  this  case,  is  not  a  "proceeding  in  bankruptcy" 
which  is  subject  to  review  in  this  court  on  original  petition.  Sec- 
tion 24  of  the  Bankruptcy  Act  of  1898  (Act  July  1,  1898,  c.  541,  30 
Stat.  553  [U.  S.  Comp.  St.  1901,  p.  3431]  )3  establishes  the  appel- 
late jurisdiction  of  Circuit  Courts  of  Appeals  over  "controversies 
arising  in  bankruptcy  proceedings"  and  their  jurisdiction  in 
equity,  "either  interlocutory  or  final,  to  revise  in  matter  of  law 
proceedings  of  the  inferior  courts  of  bankruptcy."  Section  25a 
provides  for  appeals  from  judgments  in  three  certain  enumerated 
steps  in  bankruptcy  proceedings,  ' '  in  respect  of  which  special  pro- 
vision therefor  was  required."  Holden  v.  Stratton,  191  U.  S.  115, 
24  Sup.  Ct.  45,  48  L.  Ed.  116.  There  is  in  the  language  of  the  act 
nothing  to  indicate  that  the  revisory  power  so  given  to  the  Circuit 
Courts  of  Appeals  is  more  extensive  than  that  which  was  exercised 
by  the  Circuit  Courts  under  Bankr.  Act,  March  2,  1867,  c.  176,  14 
Stat.  517.  In  Lathrop  v.  Drake,  91  U.  S.  516,  23  L.  Ed.  414,  it 
was  held  that  the  appellate  jurisdiction  conferred  on  the  Circuit 
Courts  by  the  Act  of  1867  was  of  two  classes  of  cases,  one  to  be 
exercised  under  a  petition  for  review,  the  other  by  the  ordinary 
appeal  or  writ  of  error.    The  same  distinction  has  been  recognized 

3  The  following  is  the  24th  section  and  part  of  the  25th  section  of  the 
bankruptcy  act   which   is  referred   to   above: 

Jurisdiction  of  Appellate  Courts. — a.  The  Supreme  Court  of  the  United 
States,  the  Circuit  Court  of  Appeals  of  the  United  States;  and  the  Supreme 
Courts  of  the  Territories,  in  vacation  in  chambers  and  during  their  re- 
spective terms,  as  now  or  as  they  may  be  hereafter  held,  are  hereby  invested 
with  appellate  jurisdiction  of  controversies  arising  in  bankruptcy  proceed- 
ings from  the  courts  of  bankruptcy  from  which  they  have  appellate  juris- 
diction in  other  cases.  The  Supreme  Court  of  the  United  States  shall  exer 
cise  a  like  jurisdiction  from  courts  of  bankruptcy  not  within  any  organized 
circuit  of  the  United  States  and  from  the  Supreme  Court  of  the  District 
of  Columbia. 

b.  The  several  Circuit  Courts  of  Appeal  shall  have  jurisdiction  in  equity, 
either  interlocutory  or  final,  to  superintend  and  revise  in  matter  of  law 
the  proceedings  of  the  several  inferior  courts  of  bankruptcy  within  their 
jurisdiction.  Such  power  shall  be  exercised  on  due  notice  and  petition  by 
any  party  aggrieved.    (July  1,  1898,  c.  541,  §  24,  30  Stat.  553.) 

Appeals  and  Writs  of  Error. — a.  That  appeals,  as  in  equity  cases,  may  be 
taken  in  bankruptcy  proceedings  from  the  courts  of  bankruptcy  to  the 
Circuit  Court  of  Appeals  of  the  United  States,  and  to  the  Supreme  Court 
of  the  Territories,  in  the  following  cases,  to  wit,  (1)  from  a  judgment 
adjudging  or  refusing  to  adjudge  the  defendant  a  bankrupt;  (2)  from  a 
judgment  granting  or  denying  a  discharge:  and  (3)  from  a  judgment 
allowing  or  rejecting  a  debt  or  claim  of  five  hundred  dollars  or  over.  Such 
appeal  shall  be  taken  within  ten  days  after  the  judgment  appealed  from 
has  been  rendered,  and  may  be  heard  and  determined  by  the  Appellate 
Court  in  term  or  vacation,  as  the  case  may  be. 


398  Cases  on  Federal  Procedure 

in  construing  the  Bankruptcy  Act  of  1898,  and  it  has  been  held 
that  the  provisions  for  appeal  and  for  review  on  petition  are  mutu- 
ally exclusive,  and  the  revisory  jurisdiction  *  does  not  include  any 
orders  or  decrees  which  are  appealable  or  reviewable  on  writ  of 
error.  In  re  Rusch,  116  Fed.  270,  53  C.  C.  A.  631 ;  Walter  Scott 
&  Co.  v.  Wilson,  115  Fed.  284,  53  C.  C.  A.  76 ;  In  re  Friend,  134 
Fed.  778,  67  C.  C.  A.  500;  In  re  Mueller,  135  Fed.  712,  68  C.  C.  A. 
349 ;  Odell  v.  Boyden,  150  Fed.  731,  80  C.  C.  A.  397 ;  Hewit  v.  Ber- 
lin Machine  Works,  194  U.  S.  296,  24  Sup.  Ct.  690,  48  L.  Ed.  986 ; 
First  National  Bank  of  Chicago  v.  Chicago  Title  &  Trust  Co.,  198 
U.  S.  280,  25  Sup.  Ct.  693,  49  L.  Ed.  1051. 

It  is  conceivable  that  the  line  of  demarcation  between  "pro- 
ceedings in  bankruptcy"  and  controversies  at  law  and  in  equity 
"in  the  course  of  bankruptcy  proceedings,"  may  in  some  cases 
be  obscure;  but,  generally  speaking,  the  former  include  all  ques- 
tions arising  in  the  administration  of  the  bankrupt's  estate,  such 
as  the  appointment  of  receivers  and  trustees,  orders  requiring  the 
bankrupt's  voluntary  assignee  to  surrender  property  of  the  estate, 
orders  giving  priority  to  the  claim  of  a  creditor,  orders  directing  a 
set-off  of  mutual  debts,  and  orders  confirming  the  composition. 
These  are  questions  which,  with  a  view  to  the  prompt  administra- 
tion and  distribution  of  the  assets  of  the  bankrupt,  the  law  permits 
to  be  summarily  disposed  of  by  revision.  The  latter  include  all 
controversies  and  questions  arising  between  the  trustee  and  adverse 
claimants  of  property  as  property  of  the  estate,  whether  the  prop- 
erty be  in  his  possession  or  theirs.  The  order  which  is  sought  to 
be  reviewed  in  the  present  case  is  one  made  in  a  proceeding  for 
contempt.  It  was  not  made  with  a  view  to  obtain  possession  of 
property  of  the  bankrupt,  or  to  enforce  a  prior  order  of  the  court, 
but  it  is  a  criminal  proceeding  to  punish  by  fine  or  imprisonment 
those  who  have  been  guilty  of  violating  an  injunction  of  the  court. 
Such  a  proceeding  has  nothing  to  do  witli  the  estate  in  bankruptcy. 
It  is  the  exercise  of  the  court's  power  to  preserve  order  in  its  judi- 
cial proceedings  and  enforce  its  own  orders.  It  is  a  proceeding 
prosecuted  for  the  benefit  of  the  government,  the  courts,  and  the 
public.  Section  2  (13)  of  the  Bankruptcy  Act  gives  the  court  of 
ba)ikrupt(;y  power  to  enforce  obedience,  by  its  officers  and  other 
persons,  to  all  lawful  orders,  by  fine  or  imprisonment,  or  both. 

4  For  discussion  dealing  with  the  appellate  and  supervisory  jurisdiction 
fif  the  ('ircuit  Tonrt  of  Apiicais  in  bankniiitcy  caHes,  aco  Brandenl)urg  on 
FianknipUy  (tfh  Ed.  1917)  pp.  l^OL'-lliOf),  IL'IO  I'Jlf),  ll!24-l'j;52 ;  Collier  on 
I'.ankrui.tcy   (11th  Ed.  1917)  pp.  Gea.OGS,  570,  57;{-.'5H7,  591-599.— Ed. 


Circuit  Courts  of  Appeals  399 

But  the  power  of  a  court  of  bankruptcy  to  punish  for  a  contempt 
does  not  rest  alone  upon  the  statute.  It  is  a  power  which  is  inher- 
ent in  all  courts.  Said  the  court  in  Ex  parte  Robinson,  19  Wall. 
505,  22  L.  Ed.  205 : 

"The  moment  the  courts  of  the  United  States  were  called  into 
existence  and  invested  with  jurisdiction  over  any  subject,  they  be- 
came possessed  of  this  power." 

A  proceeding  to  punish  for  contempt  committed  in  violation  of 
an  injunction  issued  in  any  suit  or  proceeding  is  a  proceeding  en- 
tirely distinct  and  separate  from  that  in  which  the  injunction  was 
issued,  and  judgment  therein  is  always  reviewable  by  a  writ  of 
error  even  before  final  decree  in  the  original  case.  Bassette  v. 
W.  B.  Conkey  Co.,  194  U.  S.  324,  24  Sup.  Ct.  665,  48  L.  Ed.  997 ; 
Bullock  Elec.  &  Mfg.  Co.  v.  Westinghouse  Elec.  &  Mfg.  Co.,  129 
Fed.  105,  63  C.  C.  A.  607 ;  Butler  v.  Fayerweather,  91  Fed.  458, 
33  C.  C.  A.  625 ;  Gould  v.  Sessions,  67  Fed.  163,  14  C.  C.  A.  366. 
The  case  before  the  court  is  clearly  distinguishable  from  Mueller 
V.  Nugent,  184  U.  S.  1,  22  Sup.  Ct.  269,  46  L.  Ed.  405,  in  which 
the  question  involved  was  whether  the  Bankruptcy  Act  authorizes 
the  trustee  to  compel  by  process  for  contempt,  the  surrender  to 
the  trustee  of  assets  properly  belonging  to  the  estate,  and  in  re 
Cole,  144  Fed.  392,  75  C.  C.  A.  330  (Id.  163  Fed.  180,  90  C.  C.  A. 
50),  in  which  the  Circuit  Court  of  Appeals  for  the  first  Circuit 
entertained  jurisdiction  upon  a  petition  for  revision  of  an  order  of 
the  court  of  bankruptcy  directing  that  the  bankruptcy  turn  over 
and  deliver  a  certain  sum  of  money  to  the  trustee  within  15  days,, 
"in  default  of  which  she  stand  committed  to  the  marshal  of  this 
district  to  be  incarcerated  until  she  obeys  the  order  of  this  court," 
etc.  Those  were  not  proceedings  to  punish  for  contempt  already 
committed,  but  orders,  the  purpose  of  which  was  to  require  the 
payment  to  the  trustees  of  the  money  of  the  estate,  and  the  com- 
mitments for  contempt  were  alternative  and  for  the  purpose  of 
compelling  obedience  to  the  orders. 

The  petition  must  be  dismissed,  with  cost. 


CHAPTER  IV. 

SUPREME  COURT. 

SECTION  I. 

Jurisdiction. 

In  re  BAIZ. 

Supreme  Court  of  the  United  States.     1890. 

135  U.  S.  403,  10  S.  Ct.  854,  34  L.  Ed.  222. 

1\Ir.  Chief  Justice  Fuller  delivered  the  opinion  of  the  court. 

The  judicial  power  of  the  United  States  extends  to  **all  cases 
affecting  ambassadors,  other  public  ministers,  and  consuls."  Const. 
Art.  Ill,  sec.  2. 

By  section  687  of  the  Revised  Statutes,  it  is  provided  that  the 
Supreme  Court  shall  have  exclusively  all  such  jurisdiction  of  suits 
or  proceedings  against  ambassadors,  or  other  public  ministers,  or 
their  domestics,  or  domestic  servants  as  a  court  of  law  can  have 
consistently  with  the  law  of  nation ;  and  original  but  not  exclusive, 
jurisdiction  of  all  suits  brought  by  ambassadors,  or  other  public 
ministers,  or  in  which  a  consul  or  a  vice-consul  is  a  party."  By 
section  563,  it  is  provided  that  "the  District  Courts  shall  have 
jurisdiction  as  follows:  *  *  *  Seventeenth.  Of  all  suits 
against  consuls  or  vice-consuls,"  except  for  certain  offenses.  The 
petitioner  has  been,  since  July,  1887,  the  consul  general  of  the 
Republic  of  Guatemala,  and  therefore  the  District  Court  has  juris- 
diction of  the  action  in  question,  unless  he  belonged  to  the  class  of 
oflScial  personages  subject  to  suits  or  proceedings  only  in  this  court. 
This  he  insists  was  the  fact,  and  avers  in  his  petition,  as  he  did  in 
his  plea  in  the  District  Court,  that  at  the  time  of  the  commence- 
ment of  the  action  and  until  and  including  the  10th  day  of  July, 
1889,  which  was  the  eighth  day  after  service  of  process  upon  him, 
he  was  "the  acting  minister  and  sole  representative  of  said  republic 

•I  no 


Supreme  Court  401 

(of  Guatemala)  in  the  United  States,"  and  for  that  reason  came 
within  the  words  of  section  687,  "other  public  ministers."    *    *    * 

Under  section  2,  Art.  II,  of  the  Constitution,  the  President  is 
vested  with  power  to  "appoint  ambassadors,  other  public  ministers 
and  consuls,"  and  by  section  3  it  is  provided  that  "he  shall  re- 
ceive ambassadors  and  other  public  ministers." 

These  words  are  descriptive  of  a  class  existing  by  the  law  of  na- 
tions, and  apply  to  diplomatic  agents  whether  accredited  by  the 
United  States  to  a  foreign  power  or  by  a  foreign  power  to  the 
United  States,  and  the  words  are  so  used  in  section  2  of  Art.  III. 
These  agents  may  be  called  ambassadors,  envoys,  ministers,  com- 
missioners, charge  d'affaires,  agents,  or  otherwise,  but  they  pos- 
sess in  substance  the  same  functions,  rights  and  privileges  as  agents 
of  their  respective  governments  for  the  transaction  of  its  diplo- 
matic business  abroad.  Their  designations  are  chiefly  significant 
in  the  relation  of  rank,  precedence  or  dignity.  7  Opinions  Attys. 
Gen.  (Gushing)  186. 

Hence,  when  in  subdivision  fifth  of  section  1674  of  the  Revised 
Statutes  we  find  "diplomatic  officer"  defined  as  including  "am- 
bassadors, envoys  extraordinary,  ministers  plenipotentiary,  min- 
isters resident,  commissioners,  charge  d'affaires,  agents  and  secre- 
taries of  legation,  and  none  others,"  we  understand  that  to  express 
the  view  of  Congress  as  to  what  are  included  within  the  term 
"public  ministers,"  although  the  section  relates  to  diplomatic  offi- 
cers of  the  United  States. 

Section  4130  which  is  the  last  section  of  the  title  (Title  XLVII, 
"Foreign  Relations"),  is  as  follows:  "The  words  'minister,'  when 
used  in  this  title,  shall  be  understood  to  mean  the  person  invested 
with,  and  exercising,  the  principal  diplomatic  functions.  The 
word  'consul'  shall  be  understood  to  mean  any  person  invested  by 
the  United  States  with,  and  exercising,  the  functions  of  consul  gen- 
eral, vice-consul  general,  consul  or  vice-consul."     *     *     * 

Diplomatic  duties  are  sometimes  imposed  upon  consuls,  but  only 
in  virtue  of  the  right  of  a  government  to  designate  those  who  shall 
represent  it  in  the  conduct  of  international  affairs,  1  Calvo,  Droit. 
Int.  586,  2d  ed.  Paris  1870,  and  among  the  numerous  authorities 
on  international  laws,  cited  and  quoted  from  by  petitioner's  coun- 
sel, the  attitude  of  consuls,  on  whom  this  function  is  occasionally 
conferred,  is  perhaps  as  well  put  by  De  Clercq  and  De  Vallat  as 
b}^  any,  as  f oUows : 

"There  remains  a  last  consideration  to  notice,  that  of  a  consul 
who  is  charged  for  the  time  being  with  the  management  of  the 
Wheaton  C.  F.  P.— 26 


402  Cases  on  Federal  Procedure 

affairs  of  the  diplomatic  post;  he  is  accredited  in  this  case  in  his 
diplomatic  capacity,  either  by  a  letter  of  the  minister  of  foreign 
affairs  of  France  to  the  minister  of  foreign  affairs  of  the  country 
where  he  is  about  to  reside,  or  by  a  letter  of  the  diplomatic  agent 
whose  place  he  is  about  to  fill,  or  finally  by  a  personal  presenta- 
tion of  this  agent  to  the  minister  of  foreign  affairs  of  the  country." 
Guide  Pratique  des  Consulats,  Vol,  1,  p.  93. 

That  it  may  sometimes  happen  that  consuls  are  so  charged  is 
recognized  by  section  1738  of  the  Revised  Statutes,  which  provides : 

"No  consular  officer  shall  exercise  diplomatic  functions,  or  hold 
any  diplomatic  correspondence  or  relation  on  the  part  of  the  United 
States,  in,  with,  or  to  the  Government  or  country  to  which  he  is 
appointed,  or  any  other  country  or  Government,  when  there  is  in 
such  country  any  officer  of  the  United  States  authorized  to  per- 
form diplomatic  functions  therein  ;  nor  in  any  case,  unless  expressly 
authorized  by  the  President  so  to  do." 

But  in  such  case  their  consular  character  is  necessarily  sub- 
ordinated to  their  superior  diplomatic  character.  "A  consul,"  ob- 
served Mr.  Justice  Story,  in  The  Anne,  3  Wheat.  435,  445,  "though 
a  public  agent,  is  supposed  to  be  clothed  with  authority  only  for 
commercial  purposes.  He  has  an  undoubted  right  to  interpose 
claims  for  the  restitution  of  property  belonging  to  the  subjects  of 
his  o^^^l  country ;  but  he  is  not  considered  as  a  minister,  or  diplo- 
matic agent  of  his  sovereign,  intrusted,  by  virtue  of  his  office,  wdth 
authority  to  represent  him  in  his  negotiations  with  foreign  states, 
or  to  vindicate  his  prerogatives.  There  is  no  doubt  that  his  sov- 
ereign may  specially  intrust  him  with  such  authority ;  but  in  such 
case  his  diplomatic  character  is  superadded  to  his  ordinary  powers, 
and  ought  to  be  recognized  by  the  Government  within  whose  domin- 
ions he  assumes  to  exercise  it." 

When  a  consul  is  appointed  charge  d'affaires,  he  has  a  double 
political  capacity;  but  though  invested  with  full  diplomatic  privi- 
leges, he  becomes  so  invested  as  charge  d'affaires  and  not  as  consul, 
and  though  authorized  as  consul  to  communicate  directly  with  the 
Government  in  which  he  resides,  he  does  not  thereby  obtain  the 
diplomatic  privileges  of  a  minister.  Atty.  Gen.  Gushing,  7  Opin- 
ions 342,  345. 

This  is  illustrated  by  the  ruling  of  Mr.  Secretary  Blaine,  April 
12,  1881,  that  the  Consul  General  of  a  foreign  Government  was  not 
to  be  regarded  as  entitled  to  the  immunities  accompanying  the  pos- 
session of  diploiujitic  character,  bccanse  he  was  also  accredited  as 
the  "political  agent"  so-called  of  that  Government,  since  he  was 


Supreme  Court  -  403 

not  recognized  as  performing  any  acts  as  such,  which  he  was  not 
equally  competent  to  perform  as  consul  general.  1  Whart.  Dig. 
Int.  Lae,  2d  ed.  c.  4,  §  88,  p.  624. 

We  are  of  opinion  that  Mr.  Baiz  was  not,  at  the  time  of  the 
commencement  of  the  suit  in  question,  charge  d'affaires  ad  interim 
of  Guatemala,  or  invested  with  and  exercising  the  principal  diplo- 
matic functions,  or  in  any  view  a  "diplomatic  officer."  He  was 
not  a  public  minister  within  the  intent  and  meaning  of  §  687 ;  and 
the  District  Court  had  jurisdiction.^ 


UNITED  STATES  v.  HOFFMAN. 
Supreme  Court  of  the  United  States.     J866. 
71  U.  8.  (4  Wallace)  158,  18  L.  Ed.  354. 
On  a  motion  for  prohibition. 

At  the  last  term  of  this  court  the  relator  made  application  for 
a  writ  of  prohibition  to  the  judge  of  the  District  Court  of  the 
Northern  District  of  California,  to  prevent  that  court  from  pro- 
ceeding further  in  a  certain  cause  in  admiralty.  This  court,  with- 
out looking  into  the  question  of  the  alleged  want  of  jurisdiction, 
granted  a  rule  on  the  judge  of  that  court  to  show  cause  why  the 
writ  should  not  be  issued ;  and  an  order  accompanied  the  rule,  that 
he  should  proceed  no  further  in  the  case  until  the  decision  of  this 
court  in  the  premises. 

The  return  of  the  judge  to  that  rule  was  now  before  this  court. 
The  substance  of  it  was,  that  after  the  rule  had  been  served  upon 
him  the  libellant  in  the  admiralty  suit  came  into  court,  and  moved 
for  permission  to  pay  all  the  costs  that  had  accrued,  and  to  dismiss 
his  suit.  After  hearing  argument  the  court  granted  the  motion, 
and  the  libellant,  having  paid  all  the  costs  of  both  parties,  an 
order  was  made  dismissing  the  suit. 

The  relator  now  asked  that  the  writ  of  prohibition  might  issue 
notwithstanding  the  return,  and  whether  it  should  or  not,  pre- 
sented  the  question  to  be  here  decided. 

The  suggestion  of  the  relator,  it  may  be  here  mentioned,  stated 

1  Only   a  portion   of   the   opinion  is  reprinted. — Ed. 


404  Cases  on  Federal  Procedure 

that  four  other  suits  in  admiralty  against  vessels  owned  by  him,  and 
founded  on  libels  of  the  same  character  as  the  libel  in  this  case, 
were  pending  in  the  same  court.     *     *     * 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

The  writ  of  prohibition,  as  its  name  imports,  is  one  which  com- 
mands the  person  to  whom  it  is  directed  not  to  do  something  which, 
by  the  suggestion  of  the  relator,  the  court  is  informed  he  is  about 
to  do.  If  the  thing  be  already  done,  it  is  manifest  the  writ  of  pro- 
hibition cannot  undo  it,  for  that  would  require  an  affirmative  act; 
and  the  only  effect  of  a  writ  of  prohibition  is  to  suspend  all  action, 
and  to  prevent  any  further  proceeding  in  the  prohibited  direction. 
In  the  case  before  us  the  writ,  from  its  very  nature,  could  do  no 
more  than  forbid  the  judge  of  the  District  Court  from  proceeding 
any  further  in  the  case  in  admiralty. 

The  return  shows  that  such  an  order  is  unnecessary,  and  will 
be  wholly  useless,  for  the  case  is  not  now  pending  before  the  court, 
and  there  is  no  reason  to  suppose  that  it  will  be  in  any  manner 
revived  or  brought  up  again  for  action.  The  facts  shown  by  the 
return  negative  such  a  presumption. 

Counsel  has  argued  very  ingeniously  that  the  case  should  be 
considered  as  remaining  in  the  court  below,  in  the  same  position 
as  it  was  when  the  rule  issued  from  this  court;  but  we  cannot  so 
regard  it.  By  the  action  of  the  libellant  and  the  consent  of  the 
court,  the  case  is  out  of  court,  and  the  relator  is  no  longer  harassed 
by  an  attempt  to  exercise  over  him  a  jurisdiction  which  he  claims 
to  be  unwarranted.  If  the  return  shows  no  more,  it  shows  that 
the  district  judge  has  no  intention  of  proceeding  further  in  that 
case.  Now,  ought  the  ■v^Tit  to  issue  to  him  under  such  circum- 
stances? It  would  seem  to  be  an  offensive  and  useless  exercise  of 
authority  for  the  court  to  order  it. 

The  suggestion  that  there  are  or  may  be  other  cases  against  the 
relator  of  the  same  character  can  have  no  legal  force  in  this  case. 
If  they  are  now  pending,  and  the  relator  will  satisfy  the  court  that 
they  are  proper  cases  for  the  exercise  of  the  court's  authority,  it 
would  probably  issue  writs  instead  of  a  rule,  but  a  writ  in  this 
case  could  not  restrain  the  judge  in  the  other  cases  by  its  own  force, 
and  could  affect  his  action  only  so  far  as  he  might  respect  the 
principle  on  which  the  court  acted  in  this  case.  We  are  not  pre- 
pared to  adopt  the  rule  that  we  will  issue  a  writ  in  a  case  where 
its  issue  is  not  justified,  for  the  sole  puri)Ose  of  establishing  a  prin- 
ciple to  govern  other  cases. 


Supreme  Court  405 

We  have  examined  carefully  all  the  cases  referred  to  by  coun- 
sel which  show  that  a  prohibition  may  issue  after  sentence  or  judg- 
ment; but  in  all  these  cases  something  remained  which  the  court 
or  party  to  whom  the  writ  was  directed  might  do,  and  probably 
would  have  done,  as  the  collection  of  costs,  or  otherwise  enforcing 
the  sentence. 

Here  the  return  shows  that  nothing  is  left  to  be  done  in  the  case. 
It  is  altogether  gone  out  of  the  court. 

These  views  are  supported  by  the  following  cases: 

In  United  States  v.  Peters,^  which  was  an  application  for  prohi- 
bition to  the  admiralty,  this  court  suspended  its  decision  to  give 
the  libellant  an  opportunity  to  dismiss  his  libel.  The  court  finally 
issued  the  writ,  but  there  seems  no  reason  to  doubt,  from  the  report 
of  the  case,  that  it  would  have  considered  such  action  by  the  libel- 
lant as  an  answer  to  the  request  for  the  writ. 

In  the  case  of  Hall  v.  Norwood  ^  a  very  old  case,  when  writs  of 
prohibition  were  much  more  common  than  now — a  prohibition  was 
asked  to  a  court  of  the  Cinque  Ports  at  Dover.  While  the  case 
was  under  consideration,  the  reporter  says:  "On  the  other  hand 
the  court  was  informed  that  they  had  proceeded  to  judgment  and 
execution  at  Dover,  and  therefore  that  they  move  here  too  late 
for  a  prohibition,  and  of  this  opinion  was  the  court,  since  there 
is  no  person  to  be  prohibited,  and  possessions  are  never  taken 
away  or  disturbed  by  prohibitions."  The  marginal  note  by  the 
reporter  is  this :    Prohibition  will  not  lie  after  the  cause  is  ended." 

The  rule  heretofore  granted  in  this  case  is 

Discharged. 


In  re  COOPER. 

Supreme  Court  of  the  United  States.    1892. 

143  V.  S.  472,  12  S.  Ct.  453,  36  L.  Ed.  232. 

Mr.    Chief    Justice    Fuller    delivered    the    opinion    of    the 
court.     *     *    * 

Section  688,  Revised  Statutes,  provides:    "The  Supreme  Court 
shall  have  power  to  issue  writs  of  prohibition  to  the  District  Courts 

13  Dallas   121. 
2Siderfin,    166. 


406  Cases  on  Federal  Procedure 

when  proceeding  as  courts  of  admiralty  and  maritime  jurisdic- 
tion."    *     *     * 

The  writ  thus  provided  for  by  section  688  is  the  common  law 
writ,  which  lies  to  a  court  of  admiralty  only  when  that  court  is 
acting  in  excess  of,  or  is  taking  cognizance  of  matters  not  arising 
within,  its  jurisdiction.  Its  office  is  to  prevent  an  unlawful  as- 
sumption of  jurisdiction,  and  not  to  correct  mere  errors  and  irreg- 
ularities. Ex  parte  Gordon,  104  U.  S.  515;  Ex  parte  Ferry  Com- 
pany, 104  U.  S.  519. 

Whether  the  granting  or  refusal,  of  the  writ  is  discretionary 
or  demandable  of  right  has  been  much  debated. 

As  remarked  by  Mr,  Justice  Gray  in  Smith  v.  Whitney,  116 
U.  S.  167,  173,  it  may  be  said  to  be  discretionary,  "where  there  is 
another  legal  remedy,  by  appeal  or  otherwise,  or  where  the  question 
of  the  jurisdiction  of  the  court  whose  action  is  sought  to  be  pro- 
hibited is  doubtful  or  depends  on  facts  which  are  not  made  matter 
of  record,  or  where  a  stranger,  as  he  may  in  England,  applies  for 
the  writ  of  prohibition.  But  where  that  court  has  clearly  no  juris- 
diction of  the  suit  or  prosecution  instituted  before  it,  and  the 
defendant  therein  has  objected  to  its  jurisdiction  at  the  outset,  and 
has  no  other  remedy,  he  is  entitled  to  a  writ  of  prohibition  as  a 
matter  of  right ;  and  a  refusal  to  grant  it,  where  all  the  proceed- 
ings appear  of  record,  may  be  reviewed  on  error." 

But  it  is  clear  upon  reason  and  authority  that  where  the  case 
has  gone  to  sentence  and  the  want  of  jurisdiction  does  not  appear 
upon  the  face  of  the  proceedings,  the  granting  of  the  writ,  which 
even  if  of  right  is  not  of  course,  is  not  obligatory  upon  the  court, 
and  the  party  applying  may  be  precluded  by  acquiescence  from 
obtaining  it.^ 


CAPITAL  TRACTION  COMPANY  v.  HOF. 
Supreme  Ccniri  of  the  United  States.     1899. 
174  v.  S.  1,  19  S.  Ct.  580,  43  L.  Ed.  873. 
Mr.  Jl'.stice  Gray  delivered  the  ojjiMion  of  tlie  court.     *     *     * 

III.     "Trial   hy  Jury,"  in  the  primary  and  usual  sense  of  the 
term  at  flic  (((niinon  law  and  in  the  American  constitutions,  is  not 

1  Only  a  portion  of   the  opinion   is  reprinted. — Ed, 


Supreme  Court  407 

merely  a  trial  by  a  jury  of  twelve  men  before  an  officer  vested  with 
authority  to  cause  them  to  be  summoned  and  empanelled,  to  ad- 
minister oaths  to  them  and  to  the  constable  in  charge,  and  to  enter 
judgment  and  issue  execution  on  their  verdict ;  but  it  is  a  trial  by 
a  jury  of  twelve  men,  in  the  presence  and  under  the  superintend- 
ence of  a  judge  empowered  to  instruct  them  on  the  law  and  to 
advise  them  on  the  facts,  and  (except  on  acquittal  of  a  criminal 
charge)  to  set  aside  their  verdict  if  in  his  opinion  it  is  against  the 
law  or  the  evidence.* 


KENTUCKY  v.  POWERS. 

Supreme  Court  of  the  United  States.     1906. 

201  V.  S.  1,  26  S.  Ct.  387,  50  L.  Ed.  633. 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court.    *    *    * 

What  we  have  said  is  clear  from  section  709  of  the  Revised 
Statutes,  which  declares  that  "A  final  judgment  or  decree  in  any 
suit  in  the  highest  court  of  a  State,  in  which  a  decision  in  the  suit 
could  be  had,  *  *  *  where  any  title,  right,  privilege  or  im- 
munity is  claimed  under  the  Constitution,  *  *  *  g^d  the  de- 
cision is  against  the  title,  right,  privilege  or  immunity  specially 
set  up  or  claimed,  by  either  party,  under  such  Constitution, 
*  *  *  may  be  reexamined  and  reversed  or  affirmed  in  the  Su- 
preme Court  upon  a  writ  of  error."  Looking  at  the  object  of 
that  section  it  must  be  held  that  this  court  has  jurisdiction,  upon 
writ  or  error  to  reexamine  the  final  judgment  of  a  subordinate 
State  Court  denying  a  Federal  right,  specially  set  up  or  claimed, 
if,  under  the  local  law,  that  court  is  the  highest  court  of  the  Statft 
entitled  to  pass  upon  such  claim  of  Federal  right.  The  great  case 
of  Cohens  v.  Virginia,  6  Wheat.  264,  which  was  a  criminal  prose- 
cution for  a  misdemeanor,  was  brought  to  this  court,  upon  writ 
of  error,  from  the  Quarterly  Session  Court  for  the  Borough  of 
Norfolk,  Virginia,  and  our  jurisdiction  was  sustained  upon  the 
ground  that  such  court  was  the  highest  court  of  the  State  in  which, 
under  the  laws  of  Virginia,  that  case  was  cognizable.  In  Downham 
v.  Alexandria,  9  Wall.  659,  which  was  a  suit  for  taxes  against  a 

1  Only  a  small  portion  of  the  opinion  is  reprinted. — Ed. 


408  Cases  on  Federal  Procedure  , 

dealer  in  liquors,  the  court  said:  "The  Legislature,  then,  having 
thought  fit  to  make  the  judgment  of  the  District  Court  in  this  case 
final  and  without  appeal,  that  court  is,  for  this  case,  the  highest 
court  in  which  the  decision  could  be  made;  and  the  writ  of  error 
is,  therefore,  warranted  by  the  Act  of  Congress,  and  regular."  In 
Gregory  v.  McVeigh,  23  Wall.  294,  306,  which  was  a  writ  of  error 
to  the  Corporation  Court  of  Alexandria,  Virginia,  and  in  which 
there  was  a  motion  to  dismiss  for  want  of  jurisdiction,  this  court 
said:  "The  Court  of  Appeals  is  the  highest  court  in  the  State 
of  Virginia.  If  a  decision  of  a  suit  could  be  had  in  that  court,  we 
must  wait  for  such  a  decision  before  we  can  take  jurisdiction,  and 
then  can  only  examine  the  judgment  of  that  court.  If,  however, 
the  suit  is  one  of  which  that  court  cannot  take  jurisdiction,  we 
may  reexamine  the  judgment  of  the  highest  court  which,  under 
laws  of  the  State,  could  decide  it.  *  *  *  We  think,  there- 
fore, that  the  judgment  of  the  Corporation  Court  of  the  City  of 
Alexandria  is  the  judgment  of  the  highest  court  of  the  State  in 
which  a  decision  of  the  suit  could  be  had,  and  that  we  may  re- 
examine it  upon  error."  In  Bergemann  v.  Backer,  157  U.  S.  655, 
659,  a  criminal  prosecution  for  murder  in  a  subordinate  court  of 
New  Jersey,  this  court  said :  "If  the  proceedings  in  the  Court  of 
Oyer  and  Terminer  could  not,  under  the  laws  of  New  Jersey,  be 
reviewed  in  a  higher  court  of  that  State,  except  upon  the  allow- 
ance of  a  writ  of  error  by  such  court  or  by  some  judge,  and  if 
such  allowance  was  refused,  then  the  judgment  of  the  court  of 
original  jurisdiction  was,  within  the  meaning  of  the  Acts  of  Con- 
gress, the  judgment  of  the  highest  court  of  the  State  in  which  a 
determination  of  the  case  could  be  had,  and  such  judgment  could 
have  been,  upon  writ  of  error,  reexamined  here,  if  it  had  denied 
any  right,  privilege,  or  immunity  specially  set  up  and  claimed 
under  the  Constitution  of  the  United  States."  So,  in  Missouri, 
Kansas,  etc.,  Ry.  Co.  v.  Elliott,  184  U.  S.  530,  539,  in  which  the 
defendant  made  a  claim  of  immunity  in  virtue  of  an  authority 
exercised  under  the  United  States,  it  was  held  that  our  writ  of 
error  ran,  not  to  the  Supreme  Court  of  Missouri,  but  to  the  Kansas 
City  Court  of  Appeals,  the  highest  court  in  which,  under  the  law 
of  that  State,  the  question  as  to  that  immunity  could  be  decided.* 

1  Only  a  portion   of   the  opinion   is   reprinted. 

Comparo  Olncy  v.  Arnold,  3  U.  R.  (:J  Dallas)  308,  318,  1  L.  Ed.  614,  618 
(1796);  Mull.-n  v.  WpHtPrn  Union  Beef  Company,  173  U.  8.  116,  19  S.  Ct. 
404,   43    L.    Ed.   63r>    (1899). 

.Seo  alHO  Htratton  v  Rtratton,  239  U.  S.  HS,  36  S.  Ct.  26,  60  L.  Ed.  142 
(191.1)    Mhi<h   hoIdH,  bh   it  Ih  set  out   in   the  syllabus,  that  a  judgment  of  an 


Supreme  Court  409 

Mr.  Justice  McKenna,  delivering  the  opinion  in  Ireland  v. 
Woods,  246  U.  S.  323,  38  S.  Ct.  319,  62  L.  Ed.  745  (1918)  said, 
after  explaining  the  difference  in  the  uses  made  of  writs  of  cer- 
tiorari and  writs  of  error,  "The  difference  between  the  remedies 
is  that  one  (writ  of  error)  is  allowed  as  of  right  where  upon  ex- 
amination it  appears  that  the  case  is  of  the  class  designated  in  the 
statute  and  that  the  Federal  question  presented  is  real  and  sub- 
stantial and  an  open  one  in  this  court,  while  the  other  (certiorari) 
is  granted  or  refused  in  the  exercise  of  the  court's  discretion." 


AMERICAN  SUGAR  REFINING  CO.  v.  NEW  ORLEANS. 

Supreme  Court  of  the  United  States.    1901. 

181  U.  8.  277,  21  8.  Ct.  646,  45  L.  Ed.  859. 
Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the  court. 

The  jurisdiction  of  the  Circuit  Court  rested  on  diverse  citizen- 
ship, and  not  on  any  other  ground,  and  had  the  Circuit  Court  of 
Appeals  gone  on  and  decided  the  case,  its  decision  would  have  been 
final,  and  our  interposition  could  only  have  been  invoked  by  cer- 
tiorari. 

This  was  so  notwithstanding  one  of  the  defenses  was  the  uncon- 
stitutionality of  the  ordinance.  Colorado  Central  Mining  Co.  v. 
Turck,  150  U.  S.  138 ;  Press  Publishing  Co.  v.  Monroe,  164  U.  S. 
105 ;  Ex  parte  Jones,  164  U.  S.  691.  These,  and  many  other  cases 
to  the  same  effect,  related  to  the  appellate  jurisdiction  of  this  court 
over  the  Court  of  Appeals  under  the  sixth  section  of  the  Judiciary 
Act  of  March  3,  1891,  but  they  necessarily  involve  consideration 
of  our  jurisdiction  under  the  fifth  section,  and  that  of  the  Court 
of  Appeals  under  the  sixth  section.  By  the  fifth  section  appeals 
or  writs  of  error  may  be  taken  from  the  District  or  Circuit  Courts 
direct  to  this  court  in  any  case  that  "involves  the  construction  or 
application  of  the  Constitution  of  the  United  States;"  "in  which 
the  constitutionality  of  any  law  of  the  United  States,  or  the  validity 

intermediate  Appellate  State  Court  is  not  a  final  judgment  of  the  State 
Court  of  last  resort  within  the  meaninor  of  section  237,  Judicial  Code,  if 
the  hij2;hest  court  of  the  State  has  a  discretionary  power  to  review  which 
has   not   been   invoked   and    refused. 

As  to  the  meaning  of  ' '  final, ' '  see  Morgan  v.  Thompson,  page  375  supra. — Ed. 


410  Cases  on  Federal  Procedure 

or  construction  of  any  treaty  made  under  its  authority,  is  drawn 
in  question;"  "in  which  the  Constitution  or  law  of  a  State  is 
claimed  to  be  in  contravention  of  the  Constitution  of  the  United 
States."  Section  six  provides  that  the  Circuit  Courts  of  Appeals 
shall  exercise  appellate  jurisdiction  to  review  the  final  decisions 
of  the  District  or  Circuit  courts  "in  all  cases  other  than  those 
provided  for  in  the  preceding  section  of  this  act,  unless  otherwise 
provided  by  law,  and  the  judgments  or  decrees  of  the  Circuit 
Courts  of  Appeals  shall  be  final  in  all  cases  in  which  the  jurisdic- 
tion is  dependent  entirely  upon  the  opposite  parties  to  the  suit 
or  controversy  being  aliens  or  citizens  of  the  United  States  or 
citizens  of  different  States."  The  jurisdiction  referred  to  is  the 
jurisdiction  of  the  Circuit  Court,  and  as  the  judgment  of  the  Court 
of  Appeals  is  made  final  in  all  cases  in  which  the  jurisdiction  of 
the  Circuit  Court  attaches  solely  by  reason  of  diverse  citizenship, 
it  follows  that  the  Court  of  Appeals  has  power  to  review  the  judg- 
ment of  the  Circuit  Court  in  every  such  case,  notwithstanding  con- 
stitutional questions  may  have  arisen  after  the  jurisdiction  of  the 
Circuit  Court  attached,  by  reason  whereof  the  case  became  em- 
braced by  section  five. 

Thus  it  was  held  in  Loeb  v.  Columbia  Township  Trustees,  179 
U.  S.  472,  where  the  jurisdiction  of  the  Circuit  Court  rested  on 
diverse  citizenship,  but  the  State  statute  involved  was  claimed 
in  defence  to  be  in  contravention  of  the  Constitution  of  the  United 
States,  that  a  writ  of  error  could  be  taken  directly  from  this  court 
to  revise  the  judgment  of  the  Circuit  Court,  although  it  was  also 
ruled  that  the  plaintiff  might  have  carried  the  case  to  the  Circuit 
Court  of  Appeals,  and  that  if  a  final  judgment  were  rendered  by 
that  court  against  him,  he  could  not  thereafter  have  invoked  the 
jurisdiction  of  this  court  directly  on  another  writ  of  error  to  re- 
view the  judgment  of  the  Circuit  Court. 

The  intention  of  the  act  in  general  was  that  the  appellate  ju- 
risdiction should  be  distributed,  and  that  there  should  not  be  two 
appeals,  but  in  cases  where  the  decisions  of  the  Courts  of  Appeals 
are  not  made  final  it  is  provided  that  "there  shall  be  of  right  an 
appeal  or  writ  of  error  or  review  of  the  case  by  the  Supreme  Court 
of  the  Unitod  States  where  the  matter  in  controversy  exceeds  one 
thousand  dollars  besides  costs." 

And  the  right  to  two  appeals  would  exist  in  every  case   (the 


Supreme  Court  411 

litigated  matter  having  the  requisite  value),  where  the  jurisdic- 
tion of  the  Circuit  Court  rested  solely  on  the  ground  that  the  suit 
arose  under  the  Constitution,  laws  or  treaties  of  the  United  States, 
if  such  cases  could  be  carried  to  the  Circuit  Court  of  Appeals, 
for  their  decisions  would  not  come  within  the  category  of  those 
made  final. 

As,  however,  a  case  so  arises  where  it  appears  on  the  record, 
from  plaintiff's  own  statement,  in  legal  and  logical  form,  such  as 
is  required  by  good  pleading,  that  the  suit  is  one  which  does  really 
and  substantially  involve  a  dispute  or  controversy  as  to  a  right 
which  depends  on  the  construction  or  application  of  the  Consti- 
tution, or  some  law,  or  treaty  of  the  United  States,  Gold  Washing 
&  Water  Co.  v.  Keyes,  96  U.  S.  199 ;  Blackburn  v.  Portland  Gold 
Mining  Co.,  175  U.  S.  571 ;  Western  Union  Telegraph  Co.  v.  Ann 
Arbor  Railroad  Company,  178  U.  S.  239;  and  as  those  cases  fall 
strictly  within  the  terms  of  section  five,  the  appellate  jurisdiction 
of  this  court  in  respect  of  them  is  exclusive. 

If  plaintiff,  by  proper  pleading,  places  the  jurisdiction  of  the 
Circuit  Court  on  diverse  citizenship,  and  also  on  grounds  inde- 
pendent of  that,  a  question  expressly  reserved  in  Colorado  Central 
Mining  Co.  v.  Truck,  150  U.  S.  138,  and  the  case  is  taken  to  the 
Court  of  Appeals,  propositions  as  to  the  latter  grounds  may  be 
certified,  or,  if  that  course  is  not  pursued  and  the  case  goes  to 
judgment  (and  the  power  to  certify  assumes  the  power  to  decide), 
an  appeal  or  wa-it  of  error  lie  under  the  last  clause  of  section  six. 
because  the  jurisdiction  would  not  depend  solely  on  diverse  citi- 
zenship.   Union  Pacific  Railway  Company  v.  Harris,  158  U.  S.  326. 

In  Carter  v.  Roberts,  177  U.  S.  496,  we  said:  "When  cases 
arise  which  are  controlled  by  the  construction  or  application  of  the 
Constitution  of  the  United  States,  a  direct  appeal  lies  to  this  court, 
and  if  such  cases  are  carried  to  the  Circuit  Courts  of  Appeals, 
those  courts  may  decline  to  take  jurisdiction,  or  where  such  con- 
struction or  application  is  involved  with  other  questions,  may 
certify  the  constitutional  question  and  afterwards  proceed  to  judg- 
ment, or  may  decide  the  whole  case  in  the  first  instance."  These 
observations  perhaps  need  some  qualification.  Undoubtedly  where 
the  jurisdiction  of  the  Circuit  Court  depends  solely  on  diverse 
citizenship  and  it  turns  out  that  the  case  involves  the  construction 
or  application  of  the  Constitution  of  the  United  States ;  or  the  con- 


412  Cases  on  Federal  Procedure 

stitutionality  of  a  law  of  the  United  States  or  the  validity  or  con- 
struction of  a  treaty  is  drawn  in  question ;  or  the  Constitution  or 
law  of  a  State  is  claimed  to  be  in  contravention  of  the  Constitution 
of  the  United  States;  the  Circuit  Court  of  Appeals  may  certify 
the  constitutional  or  treaty  question  to  this  court,  and  proceed  as 
thereupon  advised;  or  may  decide  the  whole  case;  but  language 
should  not  have  been  used  susceptible  of  the  meaning  that  in  cases 
where  the  jurisdiction  below  invoked  on  the  ground  of  diverse  citi- 
zenship the  Circuit  Court  of  Appeals  might  decline  to  take  juris- 
diction, or,  in  other  words,  might  dismiss  the  appeal  or  writ  of 
error  for  want  of  jurisdiction.  The  mere  fact  that  in  such  a  case 
one  or  more  of  the  constitutional  questions  referred  to  in  section 
five  may  have  so  arisen  that  a  direct  resort  to  this  court  might  be 
had  does  not  deprive  the  Court  of  Appeals  of  jurisdiction  or  justify 
it  in  declining  to  exercise  it. 

In  the  case  at  bar,  the  jurisdiction  rested  on  diverse  citizenship. 
Two  defences  were  interposed,  one  of  which  asserted  exemption 
from  the  license  tax,  and  the  other  denied  the  constitutionality 
of  the  legislation  under  which  the  tax  was  imposed. 

Both  defences  were  overruled,  and  judgment  rendered  for  the 
plaintiff.  The  case  was  then  carried  on  error  to  the  Circuit  Court 
of  Appeals,  which  gave  judgment  dismissing  the  writ  of  error  for 
want  of  jurisdiction.  In  this  we  think  the  court  erred,  and  that 
a  certiorari  should  issue  that  its  judgment  to  that  effect  may  be 
revised.  As  the  record  is  before  us  on  the  return  to  the  rule  here- 
inbefore entered,  and  full  argument  has  been  had,  it  will  be  neces- 
sary for  another  return  to  be  made  to  the  writ,  or  further  argument 
to  be  submitted. 

Writ  of  certiorari  to  issue ;  return  to  rule  to  stand  as  return  to 
writ ;  judgment  thereupon  reversed  and  cause  remanded  with  a 
direction  to  take  jurisdiction  and  dispose  of  the  cause. 

Mr.  Justice  Gray  concurred  in  the  result.* 

1  Tho    facts   are    omitted. 

Ah  to  tho  meaning  of  "final,"  see  Morgan  v.  Thompson,  page  375,  supra. 

Ab  to  when  a  oaso  involves  the  construction  or  application  of  the  Con- 
Htitiition  of  the  United  States,  etc.,  see  St.  Paul,  M.  &  M.  Ry.  Co.  v.  St. 
I'aul  &  N.  I'.  R.  Co.,  page  81,  mprn;  United  States  Fidelity  &  G.  Co.  v. 
State  of  Oklahoma,  LMO  U.  S.  Ill,  ;{9  St.  Ct.  .'{iM),  62  L.  Ed.— (1919);  Rust 
Land  &  Lumb«T  Co.  v.  .lackson,  2r)0  U.  S.  71,  :\9  S.  Ct.  424,  425,  6.'}  L.  Ed. 
(1919).— Ed. 


Supreme  Court  413 

CHICAGO,  B.  &  Q.  RY.  v.  WILLIAMS. 

Supreme  Court  of  the  United  Statea.     1907. 

205  U.  S.  444,  27  S.  Ct.  559,  51  L.  Ed.  875. 

Mr.  Justice  Harlan,  after  stating  the  facts,  delivered  the  opin- 
ion of  the  court. 

In  Jewell  v.  McKnight,  123  U.  S.  426,  432,  434,  435,  the  court 
had  occasion  to  determine  the  scope  of  those  provisions  of  the  Re- 
vised Statutes  which  authorized  the  judges  of  the  Circuit  Court 
in  any  civil  suit  or  proceeding  before  it  Avhere  they  were  divided  in 
opinion,  to  certify  to  this  court  the  point  upon  which  they  so  dis- 
agreed. Rev.  Stat.,  §§  650,  652,  693.  Speaking  by  Mr.  Justice 
Gray,  this  court  held  that  each  question  certified  must  be  a  distinct 
point  or  proposition  of  law  clearly  stated,  so  that  it  could  be  defi- 
nitely answered,  without  regard  to  other  issues  of  law  or  of  fact 
in  the  case.  It  said :  * '  The  points  certified  must  be  questions  of 
law  only,  and  not  questions  of  fact,  or  of  mixed  law  and  fact — 'not 
such  as  involve  or  imply  conclusions  or  judgment  b}^  the  court 
upon  the  weight  or  effect  of  testimony  of  facts  adduced  in 
cause.'  *  *  *  The  Avhole  case,  even  when  its  decision  turns 
upon  matter  of  law  only,  cannot  be  sent  up  by  certificate  of  divi- 
sion." In  that  case  the  general  creditors  of  one  of  the  parties 
sought  to  set  aside,  as  fraudulent,  a  warrant  of  attorney  to  con- 
fess judgment.  The  court  further  said:  ''The  statement  (em- 
bodied in  the  certificate  and  occupying  three  closely  printed  pages 
in  the  record)  of  what  the  judges  below  call  'the  facts  found' 
is  in  truth  a  narrative  in  detail  of  various  circumstances  as  to  the 
debtor's  pecuniary  condition,  his  dealings  with  the  parties  to  this 
suit  and  with  other  persons,  and  the  extent  of  the  preferred  cred- 
itors' knowledge  of  his  condition  and  dealings.  It  is  not  a  state- 
ment of  ultimate  facts,  leaving  nothing  but  a  conclusion  of  law 
to  be  drawn ;  but  it  is  a  statement  of  particular  facts,  in  the  nature 
of  matters  of  evidence,  upon  which  no  decision  can  be  made  with- 
out inferring  a  fact  which  is  not  found.  The  main  issue  in  the 
case,  upon  which  its  decision  must  turn,  and  which  the  certificate 
attempts  in  various  forms  to  refer  to  the  determination  of  this 
court,  is  whether  the  sale  of  goods  was  fraudulent  as  against  the 
plaintiffs.  That  is  not  a  pure  question  of  law,  but  a  question  either 
of  fact  or  mixed  law  and  fact.     *     *     *     Not  one  of  the  ques- 


414  Cases  on  Federal  Procedure 

tions  certified  presents  a  distinct  point  of  law;  and  each  of  them, 
either  in  express  terms  or  by  necessary  implication,  involves  in  its 
decision  a  consideration  of  all  circumstances  of  the  case.  *  *  * 
'They  are  mixed  propositions  of  law  and  fact,  in  regard  to  which 
the  court  cannot  know  precisely  where  the  division  of  opinion 
arose  on  a  question  of  law  alone;'  and  'It  is  very  clear  that  the 
whole  case  has  been  sent  here  for  us  to  decide,  with  the  aid  of  a 
few  suggestions  from  the  Circuit  judges  of  the  difficulties  they 
have  found  in  doing  so,'  Waterville  v.  Van  Slyke,  116  U.  S.  699, 
704."    See  also  Fire  Asso.  v.  Wickham,  128  U.  S.  426,  434. 

In  United  States  v.  Rider,  163  U.  S.  132,  the  Chief  Justice, 
speaking  for  the  court,  said  that  "it  has  always  been  held  that 
the  whole  case  could  not  be  certified,"  and  that  ''under  the  Re- 
vised Statutes,  as  to  civil  eases,  the  danger  of  the  wheels  of  justice 
being  blocked  by  difference  of  opinion  was  entirely  obviated." 
In  that  case  it  was  also  held  that  certificates  of  questions  of  law  by 
the  Circuit  Courts  of  Appeals  under  the  Judiciary  Act  of  March 
3,  1891,  are  governed  by  the  same  general  rules  as  were  formerly 
applied  to  certificates  of  division  of  opinion  in  the  Circuit  Court — 
citing  Columbus  Watch  Co.  v.  Robbins,  148  IT.  S.  266;  Maynard 
v.  Hecht,  151  U.  S.  324. 

In  United  States  v.  Union  Pacific  Railway,  158  U.  S.  505,  512 
(which  was  the  case  of  certified  questions  from  a  Circuit  Court 
of  Appeals),  the  rule  as  announced  in  the  Rider  case  was  affirmed. 
To  the  same  effect  are  Graver  v,  Faurot,  162  U.  S.  435,  436 ;  Cross 
V.  Evans,  167  U.  S.  60,  64 ;  McHenry  v.  Alford,  168  U.  S.  651,  658. 

The  present  certificate  brings  to  us  a  question  of  mixed  law  and 
fact,  and,  substantially,  all  the  circumstances  connected  with  the 
issue  to  be  determined.  It  does  not  present  a  distinct  point  of  law, 
clearly  stated,  which  can  be  decided  without  passing  upon  the 
weight  or  effect  of  all  the  evidence  out  of  which  the  question  arises. 
The  question  certified  is  rather  a  condensed,  argumentative  nar- 
rative of  the  facts  upon  which,  in  the  opinion  of  the  judges  of 
the  Circuit  Court  of  Appeals,  depends  the  validity  of  the  live- 
stock contract  in  suit.  Thus,  practically,  the  whole  case  is  brought 
here  by  the  certified  question,  and  we  are,  in  effect,  asked  to  indicate 
what,  under  all  the  facts  stated,  should  be  the  final  judgment. 
It  is,  obviously,  as  if  the  court  had  l)eon  asked,  generally,  upon  a 
statement  of  all  the  facts,  to  detormino  what,  upon  those  facts,  is 
the  law  of  the  case.  We  thus  state  the  matter,  because  it  is  ap- 
parent that  the  case  turns  altogether  upon  the  question  propounded 
jiH  to  tlie  vjilidity,  in  vifw  of  ;dl  11h'  fjicts  stated,  of  the  contract 


Supreme  Court  415 

under  which  the  plaintiff's  cattle  were  transported.  This  court 
is  without  jurisdiction  to  answer  the  question  certified  in  its  pres- 
ent imperfect  form  and  the  certificate  must  be  dismissed.  Sadler 
V.  Hoover,  7  How.  646. 

It  is  so  ordered. 
Mr.  Justice  Brewer  dissented.* 


CELLA  V.  BROWN. 

Circuit  Court  of  Appeals,  Eighth  Circu/it.    1906. 

144  Fed.  742,  75  C.  C.  A.  608. 

On  Rehearing. 

Per  Curiam. — The  request  to  certify  the  jurisdictional  question 
involved  to  the  Supreme  Court  under  Act  March  3,  1891,  c.  517, 
§6,  26  Stat.  828  (U.  S.  Comp.  St.  1901,  p.  549),  establishing 
United  States  Circuit  Courts  of  Appeals,  must  be  denied  for  two 
reasons : 

First.  Questions  should  not  be  certified  after  the  case  has  been 
decided.  Louisville  N.  A.  &  C.  Ry.  v.  Pope,  20  C.  C.  A.  253, 
74  Fed.  1 ;  Andrews  v.  National  F.  &  P.  Works,  23  C.  C.  A.  454,  77 
Fed.  774,  36  L.  R.  A.  153.  In  the  first-cited  case  Judge  Jenkins, 
speaking  for  the  United  States  Circuit  Court  of  Appeals  for  the 
Seventh  Circuit,  in  which  a  similar  motion  was  made,  said : 

"Whether  a  question  should  be  certified  rests  within  the  discre- 
tion of  the  court,  but  it  is  not  a  discretion  the  exercise  of  which 
may  be  invoked  by  a  party  of  right.  The  certification  is  for  the 
instruction  of  the  court  upon  doubtful  questions;  and  while  in 
cases  of  magnitude  and  upon  intricate  and  doubtful  questions  of 
law  the  court  upon  the  argument  may  perhaps  properly  indulge 
the  suggestion  of  counsel  of  the  desirability  of  the  advice  and  in- 

1  Only  a  portion  of  the  opinion  is  reprinted. 

In  Quinlan  v.  Green  County,  205  U.  S.  410,  27  S.  Ct.  505,  51  L.  Ed.  860 
(1907),  Mr.  Justice  Moody  said,  "The  first  question  certified  is  thought  by  a 
majority  of  the  court  to  contain  more  than  a  single  question  or  proposition 
of  law,  and  for  that  reason  it  is  not  answered. ' ' 

"A  certificate  of  questions  or  propositions  of  law  concerning  which  a  Circuit 
Court  of  Appeals  desires  the  instruction  of  this  court  for  their  proper  decision 
is  irregular  when  a  quorum  of  its  members  does  not  sit  in  the  ease  *  *  *" 
Cincinnati,  Hamilton  and  Dayton  Eailroad  v.  McKeen,  149  U.  S.  259,  13  S.  Ct. 
840,  37  L.  Ed.  725.— Ed. 


416  Cases  on  Federal  Procedure 

struction  of  the  Supreme  Court,  we  are  compelled  to  say  that  this 
formal  motion  is  not  conformable  to  correct  practice.  It  cannot  be 
tolerated  that  the  argument  of  a  cause  may  be  thus  split  up  into 
sections.  If  the  suggestion  of  counsel  may  be  entertained  that  a 
question  in  the  cause  should  for  any  reason  be  certified,  the  sug- 
gestion must  come  at  the  argument  of  the  case  upon  its  merits, 
when  the  court  can  be  fully  advised  whether  the  questions  involved 
are  so  intricate  and  doubtful  and  essential  to  be  resolved  that  the 
instruction  of  the  Supreme  Court  is  necessary  or  desirable.  If 
the  present  motion  were  entertained,  it  would  furnish  a  precedent 
for  a  practice  that  would  seriously  interfere,  with  the  proper  dis- 
patch of  the  business  of  the  court.  It  may  be  that  upon  the  argu- 
ment of  the  cause  upon  its  merits  some  question  may  be  raised 
which,  upon  consultation,  the  judges  may  deem  proper  to  certify. 
We  shall  reserve  the  right  and  discretion  so  to  do  if  and  when 
we  deem  it  needful  to  the  proper  determination  of  the  cause.  We 
must  decline  at  this  time  to  entertain  the  motion,  or  to  recognize 
the  right  of  a  partj^  to  challenge  our  judgment  upon  the  propriety 
of  so  doing  in  advance  of  the  argument  of  the  case  upon  its  merits. 
The  motion  to  certify  certain  questions  to  the  Supreme  Court  is 
overruled. ' ' 

A  petition  to  the  Supreme  Court  for  certiorari  in  the  Andrews 
Case  was  denied.    166  U.  S.  721,  17  Sup.  Ct.  996,  41  L.  Ed.  1188. 

Second.  It  is  only  in  cases  of  grave  doubt  that  questions  should 
be  certified  to  the  Supreme  Court.  Fabre  v.  Cunard  Steamship 
Co.,  8  C.  C.  A.  199,  59  Fed.  500 ;  the  Horace  B.  Parker,  20  C.  C. 
A.  572,  74  Fed.  640,  The  questions  involved  in  this  case  are  not 
of  that  nature. 

The  motion  for  a  rehearing,  as  well  as  the  petition  to  certify 
the  question  of  jurisdiction  to  the  Supreme  Court,  is  overruled.^ 


LAU  OW  BEW  v.  UNITED  STATES. 
Supreme  Court  of  the  United  States.     1892. 
lii  U.  S.  47,  12  ^.  Ct.  517,  36  L.  Ed.  3i0. 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the  court: 

•     •     • 

In  every  case  within  its  appellate  jurisdiction,  the  Circuit  Court 
of  Appeals  may  certify  to  this  court  any  question  or  proposition 

1  Only  a  portion  of  the  opinion  is  rojjrintcd. — Ed. 


Supreme  Court  417 

of  law  in  respect  of  which  it  desires  instruction,  and  this  court 
may  then  require  the  whole  record  and  cause  to  be  sent  up ;  and 
so  it  is  competent  for  this  court  by  certiorari  to  direct  any  case 
to  be  certified,  whether  its  advice  is  requested  or  not,  except  those 
which  may  be  brought  here  by  appeal  or  writ  of  error,  and  the 
latter  are  specified  as  those  where  the  money  value  exceeds  a  cer- 
tain amount,  and  which  have  not  been  made  final  "in  this  sec- 
tion," that  is,  made  final  in  terms.  And  as  certiorari  will  only 
be  issued  where  questions  of  gravity  and  importance  are  involved 
or  in  the  interest  of  uniformity  of  decision,  the  object  of  the  act 
is  thereby  attained.^ 


LAU  OW  BEW  V.  UNITED  STATES. 

Circuit  Court  of  Appeals,  Ninth  Circuit.     1891. 

47  Fed.  641,  1  C,  C.  A.  1. 

Per  Curiam. — It  is  conceded  by  counsel  for  the  appellant  that 
in  the  case  of  Wan  Shing  v.  U.  S.,  140  U.  S.  424,  11  Sup.  Ct.  Rep. 
729,  the  Supreme  Court  decided  the  point  involved  in  the  present 
appeal  adversely  to  the  appellant.  Nevertheless  we  are  asked,  by 
virtue  of  the  sixth  section  of  the  act  creating  this  court,  to  certify 
the  case  to  tlie  Supreme  Court  for  instructions,  upon  the  ground, 
as  is  claimed,  that  that  court  might  have  decided  the  case  of  Wan 
Shing  V.  U.  S.,  the  same  way  for  other  reasons  than  those  assigned 
as  the  basis  of  the  decision,  and  because  in  that  case  the  attention 
of  the  court  was  not  called  to  certain  provisions  of  the  act  of  Con- 
gress, the  consideration  of  which,  it  is  claimed,  would  have  wrought 
a  different  result.  There  is  nothing  in  the  opinion  of  the  court 
to  indicate  that  its  attention  was  not  called  to  the  clauses  of  the 
act  referred  to.  The  precise  point  was  decided,  and  we  are  bound 
to  presume  that  every  provision  of  the  law  bearing  upon  the  sub- 
ject was  considered  by  the  court.  We  cannot  put  ourselves  in 
the  attitude  of  asking  instructions  upon  a  point  already  decided. 
If,  as  is  contended  on  the  part  of  the  appellant,  the  case  of  Wan 
Shing  V.  U.  S.,  w^as  not  fully  presented  to  the  court ;  and  if,  as  is 
said,  the  treasury  department  of  the  Government,  in  enforcing 
the  provisions  of  the  act  of  Congress  involved  in  Wan  Shing 's 

1  Only   a  portion  of  the   case  is   reprinted. — Ed. 
Wheaton  C.  F.  P.— 27 


418  Cases  on  Federal  Procedure 

Case,  is  giving  it  a  different  construction  from  that  given  by  the 
court  whose  province  it  is  to  construe  and  declare  its  meaning, 
under  the  belief  that  the  court  did  not  really  intend  to  decide 
■what  it  did  decide ;  or  if,  for  any  cause,  the  Supreme  Court  may 
wish  to  reconsider  the  question, — an  application  to  that  tribunal 
to  cause  the  record  in  the  present  case  to  be  certified  up  to  it  may 
afford  the  appellant  the  remedy  he  seeks.  For  this  court  there  is 
nothing  to  do  but  to  affirm  the  judgment  on  the  authority  of  the 
case  cited,  and  it  is  ordered  accordingly,^ 


HUGULEY  MFG.  CO.  v.  GALETON  COTTON  MILLS. 

Supreme  Court  of  the  United  States.     1902. 

1S4  V.  8.  290,  22  S.  Ct.  452,  46  L.  Ed.  546. 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the  court. 
*  *  *  In  all  cases  where  the  decree  or  judgment  of  the  Circuit 
Court  of  Appeals  is  made  final  hy  the  statute,  an  appeal  does  not 
lie,  but  any  such  case  may  be  brought  here  "by  certiorari  or  other- 
wise." The  latter  words  add  nothing  to  our  power,  for  if  some 
other  order  or  writ  might  be  resorted  to,  it  would  be  ejusdem 
generis  with  certiorari.  The  writ  is  the  equivalent  of  an  appeal 
or  writ  of  error  as  declared  l)y  the  statute,  and  it  is  issued  in  the 
discretion  of  the  court.^ 


KIRWAN  V.  MURPHY. 

Supreme  Court  of  the  United  States.    1898. 

170  U.  8.  205,  18  8.  Ct.  592,  42  L.  Ed.  1009. 

In  this  case  an  interlocutory  order  was  made  by  the  Circuit 
Court  of  the  United  States  for  the  District  of  Minnesota  for  the 

1  The   facts  are   omitted. 

But  there  may  be  a  certification,  if  prior  decision  of  the  Supreme  Court 
upon  the  point  involved  was  by  an  cciually  divided  court.  TTcrtz  v.  Wood- 
man, 218  U.  S.  205,  2i:{-214,';50  S.  Ct.  "621,  623,  54  L.  Ed.  1001,  1005 
(1910).— Ed. 

2  Only  a  umall  portion  of  the  opinion  is  reprinted. 

For  discussion  of  the  time  witiiin  wliicli  tlie  writ  of  certiorari  will  issue 
under  Hection  210  of  the  Judicial  Code,  sec  Hughes'  Federal  Procedure 
(2d   Ed.),   page   519.— Ed, 


Supreme  Court  419 

issue  of  a  temporary  injunction.  There  was  an  appeal  to  the  Cir- 
cuit Court  of  Appeals,  which  affirmed  the  decision  of  the  lower 
court.  An  order  was  issued  for  a  temporary  injunction.  An  ap- 
peal from  this  order  was  taken  to  this  court.^ 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the  court. 

By  the  sixth  section  of  the  Act  of  March  3,  1891,  c.  517,  26 
Stat.  826,  the  judgments  or  decrees  of  the  Circuit  Court  of  Ap- 
peals are  made  final  in  that  court  in  the  classes  of  cases  therein 
enumerated  of  which  the  present  is  not  one,  and  it  is  provided 
that  in  all  cases  not  made  final,  there  shall  be  of  right,  within  one 
year,  an  appeal  or  writ  or  review  of  the  case  by  this  court,  where 
the  matter  in  controversy  exceeds  one  thousand  dollars  exclusive 
of  costs. 

But  this  applies  only  to  final  orders,  judgments  or  decrees. 
Young  V.  Grundy,  6  Cranch  51 ;  Keystone  Iron  Company  v.  Martin, 
132  U.  S.  91 ;  McLish  v.  Roff,  141  U.  S.  661 ;  American  Construc- 
tion Company  v.  Jacksonville  Railway  Company,  148  U.  S.  372, 
378. 

The  order  sought  to  be  reviewed  w^as  simply  an  interlocutory 
order  of  the  Circuit  Court  for  the  issues  of  a  temporary  injunc- 
tion, which  order  was  affirmed  by  the  Circuit  Court  of  Appeals 
without  direction.  If  we  should  take  jurisdiction,  it  is  this  order 
we  should  revise  in  also  reviewing  that  of  the  Circuit  Court  of 
Appeals,  and  our  mandate  would  go  directly  to  the  Circuit  Court. 
Louisville  &  Nashville  Railroad  v.  Behlmer,  169  U.  S.  644. 

In  Smith  v.  Vulcan  Iron  Works,  165  U.  S.  518,  it  was  held  that 
the  Circuit  Courts  of  Appeals  on  an  appeal  from  an  interlocutory 
order  or  decree  of  the  Circuit  courts  gi-anting  an  injunction  and 
ordering  an  accounting  in  a  patent  suit,  might  consider  and  de- 
cide the  case  on  its  merits,  and  thereupon  render  or  direct  a  final 
decree  dismissing  the  bill ;  and  this  course  might  be  pursued  in 
other  cases.  Mills  v.  Green,  159  U.  S.  651.  Here,  however,  the 
Court  of  Appeals  did  not  finally  determine  the  case  by  its  judg- 
ment, and  whether  the  temporary  injunction  should  be  made  perma- 
nent or  not,  was  left  to  the  Circuit  Court  to  decide  when  the  final 
decree  was  entered. 

And  we  may  add,  that  in  concluding  its  opinion,  the  Circuit 
Court  of  Appeals  said:    "In  view  of  these  considerations,  we  are 

1  The  facts  are   restated. — Ed. 


420  Cases  on  Federal  Procedure 

not  satisfied  that  an  error  was  committed  in  awarding  a  temporary 
injunction.  It  cannot  be  said,  we  think,  that  the  injunction  was 
improvidently  issued,  and  the  order  appealed  from  is  therefore 
affirmed."    49  U.  S.  App.  658. 

Moreover,  by  section  six,  the  Circuit  Courts  of  Appeals  are 
empowered  to  review  final  decisions  of  the  District  and  Circuit 
courts,  except  where  cases  are  carried,  under  section  five,  directly 
to  this  court,  but,  by  the  seventh  section,  as  amended  by  the  Act 
of  February  19,  1895,  28  Stat.  666,  c.  96,  jurisdiction  is  given  to 
the  Courts  of  Appeals  from  appeals  from  interlocutory  orders  in 
injunction  proceedings.  And  it  was  under  that  section  that  the 
appeal  was  taken  to  the  Court  of  Appeals  in  this  case. 

But  there  is  no  provision  in  the  Act  of  March  3,  1891,  or  any 
other  act,  authorizing  an  appeal  to  this  court  from  interlocutory 
orders  or  decrees,  and  whether  certiorari  would  lie  is  a  question 
that  does  not  arise.  In  re  Tampa  Suburban  Railroad  Company, 
168  U.  S.  583. 

Appeal  dismissed. 


RYAN  V.  BINDLEY. 
Supreme  Courts  of  the  United  States.    1863. 
68  U.  S.  (1  Wallace)  66,  17  L.  Ed.  559. 
Mr.  Justice  Davis  delivered  the  o^^inion  of  the  court: 

1.  The  allegation  in  the  declaration  must  be  taken,  generally, 
as  fixing  the  amount  or  value  for  the  purposes  of  jurisdiction.  But 
the  subsequent  pleadings  may  so  change  the  original  character 
of  the  suit  as  to  involve  an  amount  or  value  in  excess  of  two  thou- 
sand dollars,  and  when  this  is  done,  the  judgments  and  decrees  of 
the  court  below  are  subject  to  be  reviewed  here. 

In  this  case  Ryan  interposed  a  notice  of  set-off,  and  insisted 
that  Bindley  owed  him  four  thousand  dollars,  for  goods  sold  and 
money  lent,  which  he  claimed  the  right  to  set  off  against  Bindley 's 
demand,  and  to  recover  against  Bindley  a  judgment  for  the  excess. 
By  the  laws  of  Ohio  a  defence  is  permitted,  and  if  the  defendant 
succeeds  in  ])roving  his  set-off,  and  it  is  larger  than  the  plaintiff's 
claim,  he  is  f-ntitlod  to  a  judgment  for  the  excess.  The  parties 
are  concluded   by   tin-   judgment,   and  cannot  again   litigate  the 


Supreme  CJourt  421 

same  subject-matter,  unless  the  judgment  should  be  reversed,  on 
appeal  or  writ  of  error  to  the  Supreme  Court.  This  law  of  set-off, 
or  counter  claim,  and  the  practice  under  it,  has  been  adopted  as 
a  rule  of  court,  by  the  Circuit  Court  of  the  United  States  for  the 
districts  of  Ohio.  The  plea  in  this  case  was  therefore  proper,  and 
after  it  was  interposed  the  matter  in  dispute  rightfully  exceeded 
the  sum  of  two  thousand  dollars,  exclusive  of  costs,  and  as  the 
plaintiff  had  judgment,  it  is  plain  that  the  defendant  had  the  right 
to  sue  out  his  writ  of  error.^ 


SAMPSON  V.  WELSH. 

Supreme  Court  of  the  United  States.    1860. 

65  U.  S.  (24  Homtrd)  207,  16  L.  Ed.  632. 

Mr.  Chief  Justice  Taney  delivered  the  opinion  of  the  court. 

This  case  is  brought  up  by  an  appeal  from  the  Circuit  Court 
of  the  United  States  for  the  Eastern  District  of  Pennsylvania. 

A  libel  was  tiled  in  the  District  Court  for  that  district  by  S. 
&  W.  Welsh,  the  appellees,  against  the  ship  Sarah  (of  which  Samp- 
son &  Tappan,  appellants,  are  the  owners),  to  recover  compensa- 
tion for  damages  sustained  by  a  cargo  of  coffee  shipped  on  board 
the  Sarah,  at  Rio,  and  consigned  to  the  libellants;  and  also  to 
recover  compensation  for  sundry  disbursements  made  by  the  libel- 
lants for  the  payment  of  wages  and  provisions  for  the  ship. 

The  ship-owners  appeared,  and  answered;  but  it  is  unnecessary 
to  state  more  particularly  the  facts  in  controversy  between  the 
parties,  because  the  final  decree  of  the  Circuit  Court  was  for  less 
than  two  thousand  dollars,  and  consequently  no  appeal  from  its 
decree  will  lie  to  this  court. 

At  the  hearing  in  the  District  Court  the  libel  was  dismissed; 
but  upon  an  appeal  to  the  Circuit  Court  this  decision  was  re- 
versed, and  a  decree  passed  by  the  Circuit  Court  in  favor  of  the 
libellants  for  the  sum  of  $2,302.78  with  leave  to  the  respondents 

1  Only  a  portion   of  the  opinion  is  reprinted. 

As  to  the  effect  of  a  counter  claim,  see  Block  v.  Darling,  140  U,  S.  234, 
237-238,  11  S.  Ct.  832,  833,  35  L.  Ed.  476,  478  (1891). 

Compare  Bradstreet  v.  Higgins,  112  U.  S.  227,  5  S.  Ct.  117,  28  L.  Ed. 
715    (1884).— Ed. 


422  Cases  on  Federal  Procedure 

to  set  off  the  balance  due  them,  for  freight,  if  they  should  elect 
to  do  so.  Afterwards,  the  respondents  appeared  in  court,  and 
elected  to  set  off  this  balance  against  the  sum  decreed  against 
them,  which  reduced  the  amount  to  $1,071.27.  But  in  making  this 
election,  the  proctors  for  the  respondents  stated  in  writing,  and 
filed  in  the  court,  that  the  election  to  set  off  was  made  without 
any  waiver  of  their  right  to  appeal  from  the  decree.  After  this 
election  was  made,  the  court,  on  the  31st  of  August,  1858,  passed 
its  decree  in  favor  of  the  libellants  for  the  above-mentioned  sum  of 
$1,071.27,  with  interest  from  July  20,  1858.  This  was  the  final 
decree  of  the  court,  and  the  one  from  which  the  appeal  is  taken; 
and  as  it  is  below  $2,000,  no  appeal  will  lie  under  the  act  of  Con- 
gress. And  neither  the  reservation  of  the  respondents  in  making 
their  election,  nor  even  the  consent  of  both  parties,  if  that  had 
appeared,  will  give  jurisdiction  to  this  court  where  it  is  not  given 
by  law. 

The  appeal  must  therefore  be  dismissed  for  want  of  jurisdiction.^ 


UNITED  STATES  v.  GRANT. 

Supreme  Court  of  the  Vmted  States.    1884. 

110  V.  8.  225,  3  8.  Ct.  585,  28  L.  Ed.  127. 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

Grant  &  Co.  sued  the  United  States  in  the  Court  of  Claims  on 
the  2d  of  December,  1868,  and  on  the  6th  of  December,  1869,  re- 
covered a  judgment  for  $34,225.14.  On  the  5th  of  January,  1883, 
the  following  act  was  passed  by  Congress : 

"Be  it  enacted  *  *  *  That  the  Court  of  Claims  bo,  and  it 
is  hereby,  directed  to  reopen  and  readjudicate  the  case  of  Albert 
Grant  and  Darius  Jackson  *  *  *  upon  the  evidence  hereto- 
fore submitted  to  the  said  court  in  said  cause  *  *  *^  and  if 
said  court  in  such  readjudication  shall  find  from  such  evidence  that 
the  court  gave  judgment  for  a  different  sum  than  the  evidence 
sustains  or  the  court  intended,  it  shall  correct  such  error  and  ad- 
judge to  the  said  Albert  Grant  such  additional  sum  in  said  cause 
as  the  evidence  shall  justify,  not  to  exceed  fourteen  thousand  and 

1  Only    thn    opinion    is   reprinted. — Ed. 


Supreme  Court  42'] 

sixteen  dollars  and  twenty-nine  cents;  and  the  amount  by  read- 
judication  in  favor  of  the  said  Albert  Grant  shall  be  a  part  of  the 
original  judgment  in  the  cause  recorded  in  the  Fifth  Court  of 
Claims  report,  page  eighty." 

Under  this  act  Grant,  on  the  13th  day  of  January,  1883,  applied 
to  the  court  to  re-examine  the  case  and  to  render  a  judgment  nunc 
pro  tunc  for  the  additional  sum  of  $14,016.29.  Upon  this  applica- 
tion, the  court,  on  due  consideration,  found  that  the  original  judg- 
ment was  given  for  a  different  sum  than  was  intended,  and  that, 
"in  order  to  correct  such  error  and  adjudge  to  said  Albert  Grant 
such  additional  sum  in  this  cause  as  the  evidence  justifies,  he  should 
receive  a  further  sum  of  $14,016.29,"  and  on  the  11th  of  June, 
1883,  a  judgment  for  that  amount  was  rendered.  From  this  judg- 
ment the  United  States  took  an  appeal,  which  Grant  now  moves 
to  dismiss  on  the  ground  that  no  appeal  lies  from  an  order  or 
judgment  entered  in  such  a  proceeding. 

In  our  opinion,  this  motion  should  be  granted.  The  act  of  Con- 
gress, in  its  legal  effect,  is  nothing  more  than  a  direction  to  the 
Court  of  Claims  to  entertain  an  application  to  correct  an  error  in 
the  entrj^  of  one  of  its  former  judgments.  The  readjudication 
ordered  is  to  be  upon  the  old  evidence,  and,  if  an  error  is  found, 
the  correction  is  to  be  made,  not  by  rendering  a  new  judgment, 
but  by  amending  the  old  one.  The  language  is,  "and  the  amount 
by  readjudication  in  favor  of  the  said  Albert  Grant  shall  be  a  part 
of  the  original  judgment."  As,  when  the  act  was  passed,  an  ap-- 
peal  from  the  original  judgment  was  barred  by  lapse  of  time,  we 
are  satisfied  it  was  the  intention  of  Congress  to  make  the  action 
of  the  Court  of  Claims  upon  this  readjudication  final.  Certainly 
the  old  judgment  is  not  opened  to  an  appeal  by  the  readjudication, 
and  there  is  nothing  to  indicate  that  the  new  part  of  the  judgment 
can  be  separated  from  the  old  for  the  purposes  of  review  here. 
By  the  correction  the  new  judgment  was  merged  in  the  old. 

The  motion  to  dismiss  is  granted. 


UNITED  STATES  v.  ELLICOTT. 

Supreme  Court  of  the  United  States.    1912. 

223  V.  S.  524,  32  S.  Ct.  334,  56  L.  Ed.  535. 

The  United  States  appealed  to  the  Supreme  Court  of  the  United 
States  from  the  judgment  of  the  Court  of  Claims. 


424  Cases  on  Federal  Procedure 

]\Ir.  Chief  Justice  White  delivered  the  opinion  of  the  court. 


A  motion  to  dismiss  the  appeal  first  requires  attention.  The 
facts  are  as  follows : 

The  judgment  against  the  United  States  was  entered  on  May 
18,  1908.  Eighty-four  days  afterwards,  on  August  10,  1908,  de- 
fendant filed  a  motion  for  a  new  trial.  This  motion  was  argued 
and  submitted  on  November  23,  1908,  and  was  overruled  on  Jan- 
uary 4,  1909,  in  the  term  which  began  on  December  7,  1908,  Sev- 
enteen days  afterwards,  on  January  21,  1909,  the  United  States 
filed  a  motion  to  amend  the  findings  of  fact ;  on  February  8,  1909, 
the  motion  was  argued  and  submitted ;  and  on  February  15,  1909, 
the  motion  was  overruled  in  part  and  allowed  in  part.  Ten  days 
afterwards,  on  February  25,  1909,  the  United  States  made  ap- 
plication for  and  gave  notice  of  an  appeal  "from  the  judgment 
rendered  in  the  above  entitled  cause  on  the  fourth  day  of  January, 
1909." 

The  grounds  for  the  motion  to  dismiss  are  these:  (a)  that  the 
appeal  was  not  taken  within  ninety  days  after  judgment  (Eev. 
Stat.,  §708),  and  (b)  that  the  appeal  prayed  for  and  allowed 
was  not  from  the  judgment  of  January  4,  1909,  "but  was  merely 
from  the  order  overruling  the  motion  for  a  new  trial." 

The  motion  is  without  merit.  The  general  rule  governing  the 
subject  of  prosecuting  error  or  taking  appeals  from  final  judg- 
ments or  decrees  is,  we  think,  applicable  to  judgments  or  decrees 
of  the  Court  of  Claims,  and  that  rule  treats  a  judgment  or  decree 
properly  entered  in  the  cause  as  not  final  for  the  purpose  of  appeal 
until  a  motion  for  a  new  trial  or  a  petition  for  rehearing,  as  the 
case  may  be,  when  entertained  by  the  court,  has  been  disposed 
of;  and  the  time  for  appeal  begins  to  run  from  the  date  of  such 
disposition.  Kingman  v.  Western  Manufacturing  Company,  170 
U.  S.  675,  680,  681,  It  is,  we  think,  also  manifest  that  the  appeal 
was  taken  upon  the  hypothesis  just  stated  that  the  judgment  en- 
tered did  not  become  a  final  judgment  for  the  purposes  of  appeal 
until  the  motion  for  a  new  trial  had  been  disposed  of,  Texas  & 
Pacific  Railway  Company  v.  Murphy,  111  U.  S.  488.^ 

1  Only    a   portion    of   tho   opinion    is   reprinted. 

Compare  Henry  v.  Mcrguire,  111  Cal.  1,  4;j  Pac.  387   (1896).— Ed. 


Supreme  Court  425 

HOLDEN  V.  STRATTON. 

Supreme  Court  of  the  United  States.    1903. 

191  U.  8.  115,  24  8.  Ct.  45,  48  L.  Ed.  116. 

Two  separate  proceedings  were  commenced  in  the  District  Court 
of  the  United  States  for  the  District  of  Washington,  on  January 
19,  1901,  against  D.  N.  Holden  and  Lizzie  Holden,  to  the  end  that 
each  be  adjudicated  a  bankrupt,  which  were  consolidated,  and  on 
the  ensuing  twenty-fifth  of  February  they  were,  respectively,  so 
adjudicated.    The  creditors  of  each  of  the  bankrupts  were  the  same. 

Thereupon  J.  A.  Stratton  was  duly  elected  trustee  in  bank- 
ruptcy of  the  estate  of  each  of  the  bankrupts  and  qualified  as  such. 
The  bankrupts,  and  each  of  them,  applied  for  exemption  in  their 
favor  of  two  certain  policies  of  life  insurance  in  the  hands  of  the 
trustee.  D.  N.  Holden  was  insured,  and  Lizzie  Holden  was  the 
beneficiary,  in  both,  with  the  provision  that  if  she  should  survive 
him,  payment  should  be  made  to  his  executors,  administrators  and 
assigns. 

The  exemption  was  disallowed  by  the  referee,  who  reported  his 
action  to  the  court.  The  bankrupts  filed  exceptions  to  the  report, 
and  the  court  on  July  16,  1901,  set  it  aside  and  adjudged  the  poli- 
cies to  be  exempt.  Stratton  then  filed  a  petition  in  the  Circuit 
Court  of  Appeals  for  the  Ninth  Circuit  for  a  revision  of  this  order. 
It  was  therein  alleged  among  other  things  that  the  policies  had 
a  present  cash  surrender  value  combined  of  about  twenty-two 
hundred  dollars.  The  Circuit  Court  of  Appeals,  accepting  the 
ruling  of  that  court  in  the  previous  case  of  In  re  Scheld,  104  Fed. 
870,  held  that  the  policies  were  not  exempt,  and  decreed  a  re- 
vision of  the  order  of  the  District  Court  accordingly.  113  Fed. 
Rep.  141.  From  this  decree  an  appeal  was  prayed  to  this  court 
and  allowed  February  12,  1902,  and  the  record  was  filed  here 
April  14,  1902.  And  subsequently  a  certificate  of  a  justice  of  this 
court  was  filed  herein  that  in  his  opinion  the  determination  of  the 
questions  involved  was  essential  to  a  uniform  construction  of  the 
bankruptcy  act  throughout  the  United  States. 

The  appeal  was  submitted  on  a  motion  to  dismiss,  and  also  on 
the  merits. 


426  Cases  on  Federal  Procedure 

Mr.  Chief  Justice  Fuller  delivered  the  opinion  of  the  court. 

It  will  be  perceived  that  the  jurisdiction  of  the  Circuit  Court 
of  Appeals  was  invoked  on  an  original  petition  under  section  24b 
of  the  bankruptcy'  law,  which  provides:  "The  several  Circuit 
Courts  of  Appeal  shall  have  jurisdiction  in  equity,  either  inter- 
locutory or  final,  to  superintend  and  revise  in  matter  of  law  the 
proceedings  of  the  several  inferior  courts  of  bankruptcy  within 
their  jurisdiction.  Such  power  shall  be  exercised  on  due  notice 
and  petition  by  any  party  aggrieved." 

This  supervisory  jurisdiction  in  matter  of  law  was  conferred 
on  the  Circuit  courts  by  the  Act  of  March  2,  1867,  14  Stat.  517, 
518,  c.  176,  §  2 ;  Rev.  Stat.  §  4986,  and  it  was  settled  under  that  act 
that  appeals  to  this  court  did  not  lie  from  the  decisions  of  the 
Circuit  courts  in  the  exercise  of  that  jurisdiction.  Morgan  v. 
Thornhill,  11  Wall.  65 ;  Conro  v.  Crane,  94  U.  S.  441.  The  ruling 
is  decisive  here  unless  the  present  act  elsewhere  otherwise  pro- 
vides. But  this  it  does  not  do,  the  special  and  summary  character 
of  the  revision  contemplated  being  substantially  the  same  as  in  the 
prior  act,  and  the  provision  for  appeals  not  embracing  appeals 
from  decrees  in  revision. 

Section  25a,  30  Stat.  544,  c.  541,  July  1,  1898,  provides  "that 
appeals,  as  in  equity  cases,  may  be  taken  in  bankruptcy  proceed- 
ings from  the  courts  of  bankruptcy  to  the  Circuit  Court  of  Appeals 
of  the  United  States,  and  to  the  Supreme  Court  of  the  Territories, 
in  the  following  cases,  to  wit,  (1)  from  a  judgment  adjudging  or 
refusing  to  adjudge  the  defendant  a  bankrupt ;  (2)  from  a  judg- 
ment granting  or  denying  a  discharge;  and  (3)  from  a  judgment 
allowing  or  rejecting  a  debt  or  claim  of  five  hundred  dollars  or 
over. ' ' 

And  section  25b  for  appeals  to  this  court  "from  any  final  de- 
cision of  a  Court  of  Appeals,  allowing  or  rejecting  a  claim  under 
this  act,"  where  the  amount  in  controversy  exceeds  the  sum  of 
two  thousand  dollars,  and  the  question  involved  was  one  which 
might  have  been  taken  from  the  highest  court  of  a  State  to  the 
Supreme  Court  of  the  United  States ;  or  where  some  justice  of  the 
Supreme  Court  certifies  that  "in  his  opinion  the  determination 
of  the  question  or  questions  involved  in  the  allowance  or  rejection 
of  such  claim  is  essential  to  a  uniform  construction  of  this  act 
throughout  the  United  States." 

This  case  was  not  taken  to  the  Court  of  Appeals  by  appeal,  as 
in  equity  cases,  to  be  re-examined  on  the  facts  as  well  as  the  law, 


Supreme  Court  427 

nor  could  it  have  been,  for  it  was  not  one  of  the  cases  enumerated 
in  section  25a.  The  order  of  the  Circuit  Court  was  not  "a  judg- 
ment allowing  or  rejecting  a  debt  or  claim  of  five  hundred  dollars 
or  over,"  or  the  revising  of  the  Circuit  Court  of  Appeals,  "a  final 
decision,  allowing  or  rejecting  a  claim,"  within  the  intent  and 
meaning  of  either  subdivision  a  or  b.  By  section  2,  subd,  2,  courts 
of  bankruptcy  are  vested  with  the  power  to  "allow  claims,  dis- 
allow claims,  reconsider  allowed  or  disallowed  claims,  and  allow  or 
disallow  them  against  bankrupt  estates;"  and  section  fifty-seven 
comprehensively  covers  the  subject  of  the  proof  and  allowance  of 
claims,  treating  them  as  moneyed  demands. 

And  while  the  word  "claim"  is  used  in  its  signification  of  the 
demand  or  assertion  of  a  right  in  subd.  11  of  section  2,  in  respect 
of  "all  claims  of  bankrupt  to  their  exemptions,"  it  is  also  used 
in  many  parts  of  the  act,  and,  as  we  think,  in  section  25,  as  re- 
ferring to  debts  (which  by  sub-sec.  11  of  section  1  include  "any 
debt,  demand  or  claim  provable  in  bankruptcy"),  presented  for 
proof  against  estates  in  bankruptcy,  Hutchinson  v.  Otis,  190  U. 
S.  552,  555 ;  In  re  Whitener,  105  Fed.  Rep.  180 ;  In  re  Columbia 
Real  Estate  Co.,  112  Fed.  Rep.  643,  645. 

The  allowance  or  rejection  of  a  debt  or  claim  is  a  part  of  the 
bankruptcy  proceedings,  and  not  an  independent  suit,  and  under 
the  Act  of  1867  it  was  held  that  this  court  had  no  jurisdiction  to 
review  judgments  of  the  Circuit  courts  dealing  with  the  action  of 
the  District  courts  in  such  allowance  or  rejection  because  they 
were  not  final.  Wiswall  v.  Campbell,  93  U.  S.  347;  Leggett  v. 
Allen,  110  U.  S.  741.  The  jurisdiction  now  given  is  carefully 
restricted  and  cannot  be  expanded  beyond  the  letter  of  the  grant. 
It  is  an  exception  to  the  general  rule  as  to  appeals  and  writs  of 
error  obtaining  from  the  foundation  of  our  judicial  system.  Mc- 
Lish  V.  Roff,  141  U.  S.  661. 

The  distinction  between  steps  in  bankruptcy  proceedings  proper 
and  controversies  arising  out  of  the  settlement  of  the  estates  of 
bankrupts  is  recognized  in  sections  23,  24  and  25  of  the  present 
act,  and  the  provisions  as  to  revision  in  matter  of  law  and  appeals 
were  framed  and  must  be  construed  in  view  of  that  distinction. 
Denver  First  National  Bank  v.  Klug,  186  U.  S.  202;  Elliott  v. 
Toeppner,  187  U.  S.  327,  333,  334. 

Section  6  of  the  Act  of  i\Iarch  3,  1891,  has  no  application,  as 
that  refers  to  cases  carried  to  the  Circuit  Court  of  Appeals  by 
appeal  or  writ  of  error.  But  in  view  of  the  terms  of  that  act  and 
of  the  nature  of  the  writ,  we  have  held  that  under  a  reasonable 


428  Cases  on  Federal  Procedure 

construction  of  subdivision  d  of  section  25,  certiorari  lies  to  de- 
crees in  revision.  Brj'an  v.  Berheimer,  175  U.  S.  724;  S.  C,  181 
U.  S.  188;  Mueller  v.  Nugent,  180  U.  S.  640;  S.  C,  184  U.  S.  1; 
Louisville  Trust  Co.  v.  Comingor,  181  U.  S.  620 ;  S.  C,  184  U.  S. 
18.  In  the  case  first  cited  it  is  pointed  out  that  the  Circuit  Court 
of  Appeals  treated  the  case  as  if  before  it  on  a  petition  for  revi- 
sion though  it  had  been  carried  there  by  appeal,  and  we  considered 
the  decree  as  rendered  in  the  exercise  of  the  supervisory  power. 
181  U.  S.  192,  193. 

Appeal  dismissed.^ 

1  For  a  further  discussion  of  section  252  of  the  Judicial  Code,  see  Duryea 
Power  Co.  V.  Sternbergh,  218  U.  S.  299,  31  S.  Ct.  25,  54  L.  Ed.  1047 
(1910);  Tefft,  Weller  &  Co.  v.  Munsuri,  222  U.  S.  114,  32  S.  Ct.  67,  56 
L.    Ed.    118    (1911).— Ed. 


CHAPTER  V. 

PROVISIONS  COMMON  TO  MORE  THAN  ONE  COURT. 

SECTION  I. 

Definitions. 

GOODING  V.  REID,  MURDOCK  &  CO. 

Circuit  Court  of  Appeals,  Seventh  Circuit.     1910. 

177  Fed.  684,  101  C.  C.  A.  310. 

Grosscup,  Circuit  Judge,  after  stating  the  facts,  delivered  the 
opinion. 

The  equity  suit,  in  which  the  writ  of  ne  exeat  was  issued,  is 
still  pending.  The  immediate  action  at  law  for  false  imprison- 
ment, growing  out  of  the  execution  of  the  writ,  can  and  ought  to  be 
enjoined;  and  this  question  depends  largely  on  whether,  as  an 
appropriate  process  of  furthering  the  jurisdiction  and  orders  of 
the  equity  suit,  the  issuance  of  a  writ  of  ne  exeat  is  coram  non 
judice. 

The  chief  arguments  made  against  the  writ  are,  that  it  amounts 
to  imprisonment  for  debt,  and  that  there  is  no  imprisonment  for 
debt  in  Illinois ;  that  it  will  be  issued  only  when  the  demand  sought 
to  be  enforced  is  certain  in  its  nature,  actually  payable,  and  not 
contingent ;  and  that  it  will  not  be  issued  in  an  action  for  an  ac- 
counting, unless  there  is  an  admitted  balance  due  by  the  defend- 
ant to  the  plaintiff;  all  of  which  arguments,  except  the  first,  chal- 
lenge not  the  jurisdiction  of  the  court  to  issue,  but  the  sufficiency 
of  the  case  made  out  in  such  court  to  call  for  the  exercise  of  its 
jurisdiction,  and  are  therefore  immaterial  here,  because  this  is  not 
an  appeal  from  the  order  issuing  the  writ,  nor  from  the  order 
denying  the  motion  to  quash  the  writ,  nor  from  any  order  involv- 
ing appellant's  right  to  an  assessment  of  damages  in  the  equity 
suit,  on  account  of  the  issuance  of  the  writ,  but  an  appeal  from 

429 


430  Cases  on  Federal  Procedure 

an  order  that  forbids  appellant  from  going  into  any  court  other 
than  the  court  from  which  the  writ  was  issued,  to  determine  these 
questions.  And  granted  that  the  court  had  jurisdiction  to  issue 
the  writ,  and  that  it  had  power  to  protect  this  jurisdiction  so  as 
to  make  it  all  inclusive  of  the  questions  that  might  arise  there- 
under, including  the  question  of  damages;  these  questions  are  not 
questions  that  arise  on  this  appeal. 

(1)  Did  the  equity  court  have  power,  as  an  appropriate  process 
toward  preserving  the  property  brought  by  the  bill  within  its 
jurisdiction,  compelling  a  delivery  to  the  receiver,  and  to  prevent 
an  evasion  of  its  order,  to  issue  the  writ?  We  think  it  did.  The 
constitutional  provision  regarding  imprisonment  for  debt  does  not 
prohibit  the  exercise  of  equitable  process  for  the  purposes  named. 
Dean  v.  Smith,  23  Wis.  483,  99  Am.  Dec.  198.  The  writ  is  one  of 
right  (2  Story's  Eq.  Jurisp.  [10th.  Ed.]  §  1469),  and,  as  said  in 
the  preface  to  Warner's  1st  Am.  Ed.  of  Beames'  Ne  Exeat  Regno, 
is  little  more  than  an  order  to  hold  to  equitable  bail,  the  party 
generally  getting  rid  of  it  bj'-  giving  security  to  abide  the  event 
of  the  litigation.  And  in  a  number  of  cases  in  this  country,  as 
an  appropriate  equitable  process,  the  writ  has  been  utilized  and 
sustained.  Patterson  v.  McLaughlin,  1  Cranch,  C.  C.  352,  Fed. 
Cas.  No.  10,828;  Union  Mutual  Life  Ins.  Co.  v.  Kellogg,  24  Fed. 
Cas.  611,  No.  14,373;  In  re  Rosser,  101  Fed.  562,  41  C.  C.  A. 
497 ;  Dean  v.  Smith,  supra. 

In  Enos  v.  Hunter,  4  Gilman  (111.)  211,  it  was  said: 
"Where  the  relief  sought  could  be  effected  by  acting  directly 
upon  the  person  of  the  defendant,  the  court  of  chancery  has  never 
hesitated  to  entertain  the  bill  where  the  defendant  is  found  within 
its  jurisdiction,  whether  the  subject-matter  of  the  controversy  be 
within  its  control  or  not.  Of  this  character  are  those  cases  where 
the  courts  have  compelled  specific  performance  of  contracts  for 
the  conveyance  of,  or  relating  to  land  which  is  situated  beyond 
its  jurisdiction.  And  in  such  cases  the  court  will  compel  a  con- 
veyance to  be  executed,  in  such  manner  and  form  as  may  be  pre- 
scribed by  the  law  of  the  country  where  the  land  is  situate.  And 
if  need  be,  in  order  to  effect  this,  they  will  prevent  the  defendant 
from  leaving  the  jurisdiction  of  the  court,  pendente  lite,  by  a  writ 
of  ne  exeat. 

In  Mitford  &  Tyler's  PI.  and  Pr.  in  Equity,  p.  144,  it  is  said: 
"For  the  purpose  of  preserving  property  in  dispute  pending 
a  suit,  or  to  i)rcvent  evasion  of  justice,  the  court  either  makes  a 


Provisions  Common  to  More  Than  One  Court         431 

special  order  on  the  subject,  or  issues  a  provisional  writ;  as 
*  *  *  the  writ  of  ne  exeat  regno  to  restrain  the  defendant  from 
avoiding  the  plaintiff's  demands  by  quitting  the  Kingdom." 

In  a  note  to  section  865,  Gibson's  Suits  in  Chanceiy  (1907),  it 
is  said : 

*'It  would  seem  that  a  ne  exeat  is  a  writ  necessary  for  the  pur- 
poses of  justice  when  the  defendant,  by  leaving  the  State,  can 
defeat  the  power  of  the  court  to  grant  effectual  relief,  or  evade 
the  relief  granted;  especially  when  the  relief  consists  in  com- 
pelling the  defendant  (1)  to  execute  to  the  complainant  a  deed 
for  land,  or  other  property,  situate  in  another  State,  or  *  *  * 
(4)  to  do  some  other  act  which  the  court  could  not  effectually  do 
by  the  direct  and  inherent  operation  of  its  own  decree.  The  ob- 
ject of  the  writ  is  to  enable  the  court  to  act  upon  the  person  of 
the  defendant  in  such  cases.  1  Barb.  Ch.  P.  647,  651,  652 ;  2  Dan. 
Ch.  Pr.  1698,  note;  2  Sto.  Eq.  Jur.  §§  1471,  1472,  note." 

That  the  writ  was  not  coram  non  judice,  seems  clearly,  by  these 
authorities,  to  be  established.^ 


SCIRE  FACIAS. 

4  Words  and  Phrases  (2nd  Series)  483,  484. 

"Scire  facias"  is  a  judicial  writ  at  common  law  to  revive  judg- 
ments, or  to  obtain  satisfaction  thereof,  from  sureties  upon  bail 
or  other  recognizances  taken  in  the  proceedings  in  which  the  judg- 
ment is  rendered.  Egan  v.  Chicago  Great  Western  By.  Co.,  164 
Fed.  344,  350.2 

1  Only  a  portion  of  the  opinion  is  reprinted. — Ed. 

2  For  a  further  discussion  of  "scire  facias"  see  the  other  refeienees  in 
4  Words  and  Phrases  (2nd  Series),  483-485. 

For  a  good  collection  of  cases  dealing  with  the  remainder  of  section  262  of 
the  Judicial  Cfede,  see  2  U.  S.  Comp.  Stat.  (Annotated)   1916,  1893-1912. 

See  also  2  U.  S.  Comp.  Stat.  (Annotated)  1916,  1917-1962,  for  a  discussion 
of  sections  264-266  of  the  Judicial  Code  which  cannot  be  taken  up  in  this 
book. 

It  may  be  noted  here  that  cases  on  section  267  of  the  Judicial  Code  are 
omitted  for  the  question  involved  therein  is  ordinarily,  if  not  always,  thor- 
oughly discussed  in  courses  in  equity. — Ed. 


432  Cases  on  Federal  Procedube 

SECTION  II. 

Contempts. 
SAVIN,  PETITIONER. 

Supreme  Court  of  the  United  States.    1889^ 

131  U.  S.  267,  9  S.  Ct.  699,  33  L.  Ed.  150. 

Flores,  we  have  seen,  was  in  attendance  upon  the  court  in  obedi- 
ence in  behalf  of  one  of  the  parties  to  a  case  then  being  tried. 
While  he  was  so  in  attendance,  and  when  in  the  jury-room,  tem- 
porarily used  as  a  witness-room,  the  appellant  endeavored  to  deter 
him  from  testifying  in  favor  of  the  Government  in  whose  behalf 
he  had  been  summoned;  and,  on  the  same  occasion,  and  while  the 
witness  was  in  the  hallway  of  the  courtroom,  the  appellant  offered 
him  money  not  to  testify  against  Goujon,  the  defendant  in  that 
case.  Was  not  this  such  misbehavior  upon  the  part  of  the  ap- 
pellant as  made  him  liable,  under  §  725,  to  fine  or  imprisonment, 
at  the  discretion  of  the  court?  This  question  cannot  reasonably 
receive  any  other  than  an  affirmative  answer.  The  jury-room  and 
hallway,  where  the  misbehavior  occurred,  were  parts  of  the  place 
in  which  the  court  was  required  by  law  to  hold  its  sessions.  It 
was  held  in  Heard  v.  Pierce,  8  Cush.  338,  341,  that  "the  grand 
jury,  like  the  petit  jury,  is  an  appendage  of  the  court,  acting 
under  the  authority  of  the  court,  and  the  witnesses  summoned 
before  them  are  amenable  to  the  court,  precisely  as  the  witnesses 
testifying  before  the  petit  jury  are  amenable  to  the  court."  Bacon, 
in  his  essay  on  Judicature  (No.  LVI),  says:  "The  place  of  justice 
is  an  hallowed  place;  and  therefore  not  only  the  bench  but  the 
footpace  and  precincts  and  purprise  thereof  ought  to  be  preserved 
against  scandal  and  corruption."  We  are  of  opinion  that,  within 
the  meaning  of  the  statute,  the  court,  at  least  when  in  session,  is 
present  in  every  part  of  the  place  set  apart  for  its  own  use,  and 
for  the  use  of  its  officers,  jurors  and  witnesses;  and  misbehavior 
anywhere  in  such  place  is  misbehavior  in  the  presence  of  the  court. 
It  is  true  that  the  mode  of  proceeding  for  contempt  is  not  the 
same  in  every  case  of  such  misbehavior.  Wliere  the  contempt  is 
committed  directly  under  the  eye  within  the  view  of  the  court, 
it  may  proceed  "upon  its  own  knowledge  of  the  facts,  and  punish 
the  offender,  without  further  proof,  and  without  issue  or  trial  in 


Provisions  Common  to  More  Than  One  Court         433 

any  form,"  Ex  parte  Terry,  128  U.  S.  289,  309;  whereas,  in  eases 
of  misbehavior  of  which  the  judge  cannot  have  such  personal  knowl- 
edge, and  is  informed  thereof  only  by  the  confession  of  the  party, 
or  by  the  testimony  under  oath  of  others,  the  proper  practice  is, 
by  rule  or  other  process,  to  require  the  offender  to  appear  and 
show  cause  why  he  should  not  be  punished.  4  Bl.  Com.  286.  But 
this  difference  in  procedure  does  not  effect  the  question  as  to 
whether  particular  acts  do  not,  within  the  meaning  of  the  statute, 
constitute  misbehavior  in  the  presence  of  the  court.  If,  while 
Flores  was  in  the  courtroom,  waiting  to  be  called  as  a  witness, 
the  appellant  had  attempted  to  deter  him  from  testifying  on  be- 
half of  the  Government,  or  had  there  offered  him  money  not  to 
testify  against  Goujon,  it  could  not  be  doubted  that  he  would  have 
been  guilty  of  misbehavior  in  the  presence  of  the  court,  although 
the  judge  might  not  have  been  personally  cognizant  at  the  time 
of  what  occurred.  But  if  such  attempt  and  offer  occurred  in  the 
hallway  just  outside  of  the  courtroom,  or  in  the  witness-room, 
where  Flores  was  waiting,  in  obedience  to  the  subpoena  served 
upon  him,  or  pursuant  to  the  order  of  the  court,  to  be  called  into 
the  courtroom  as  a  witness,  must  it  be  said  that  such  misbehavior 
was  not  in  the  presence  of  the  court?    Clearly  not.^ 

1  Only   a   portion   of  the   opinion   is  reprinted. 

See  also  United  States  v.  Carter,  25  Fed.  Cas.  No.  14,740,  p.  313,  3  Cranch, 
C.  C.  423  (1829);  United  States  v.  Emerson,  25  Fed.  Cas.  No.  15,050,  p.  1012, 
4  Craneh,  C.  C.  188  (1831);  Toledo  Newspaper  Co.  v.  United  States,  237  Fed. 
986,  991-993,  150  C.  C.  A.  636,  641-643  (1916)  ;  In  re  Independent  Pub.  Co., 
240  Fed.  849,  852-858,  153  C.  C.  A,  535,  538-544  (1917).— Ed. 


Whcaton  C.  F.  P.— 28 


CHAPTER  VI. 
CONCURRENT  JURISDICTION. 

SECTION  I. 

Rights  of  State  and  Federal  Courts  Having  Concurrent 

Jurisdiction. 

BALTIMORE  &  O.  R.  CO.  v.  WABASH  R.  CO. 

Circuit  Court  of  Appeals,  Seventh  Circuit.     1902. 

119  Fed.  678,  57  C.  C.  A.  417. 

Jenkins,  Circuit  Judge  (after  stating  the  facts). — It  is  settled 
that,  when  a  State  Court  and  a  court  of  the  United  States  may- 
each  take  jurisdiction  of  a  matter,  the  tribunal  whose  jurisdiction 
first  attaches  holds  it,  to  the  exclusion  of  the  other,  until  its  duty 
is  fully  performed,  and  the  jurisdiction  involved  is  exhausted. 
Harkrader  v.  Wadley,  172  U.  S.  148,  19  Sup.  Ct.  119,  43  L.  Ed. 
399;  Farmers'  Loan  &  Trust  Co.  v.  Lake  Street  El.  R.  Co.,  177 
U.  S.  51,  20  Sup.  Ct.  564,  44  L.  Ed.  667.  We  have  followed  this 
rule,  declaring  "that  the  court  which  first  obtains  possession  of 
the  res  or  of  the  controversy,  by  priority  in  the  service  of  its 
process,  acquires  exclusive  jurisdiction  for  all  the  purposes  of  a 
complete  adjudication."  505,000  Feet  of  Lumber,  24  U.  S.  App. 
509,  517,  12  C.  C.  A.  628,  65  Fed.  236.  The  rule  is  not  only  one 
of  comity,  to  prevent  unseemly  conflicts  between  courts  whose 
jurisdiction  embraces  the  same  subject  and  persons,  but  between 
State  courts  and  those  of  the  United  States  it  is  something  more. 
"It  is  a  principle  of  right  and  law,  and  therefore  of  necessity. 
It  leaves  nothing  to  discretion  or  mere  convenience. ' '  Coveli  v.  Hey- 
man,  111  U.  S.  176,  4  Sup.  Ct.  356,  28  L.  Ed.  390.  The  rule  is  not 
limited  to  cases  where  property  has  actually  been  seized  under 
judicial  process  before  a  second  s-uit  is  instituted  in  another  court; 
i)ut  it  applies  as  well  where  suits  are  brought  to  enforce  liens 
against  specific  property,  to  marshal  assets,  administer  trusts,  or 

434 


Concurrent  Jurisdiction  435 

liquidate  insolvent  estates,  and  in  all  suits  of  a  like  nature.  Farm- 
ers' Loan  &  Trust  Co.  v.  Lake  Street  El.  R.  Co.,  supra;  Merritt 
V.  Steel  Barge  Co.,  24  C.  C.  A.  530,  79  Fed.  228,  49  U.  S.  App.  85. 
The  rule  is  limited  to  actions  which  deal  either  actually  or  poten- 
tially with  specific  property  or  objects.  Where  a  suit  is  strictly 
in  personam,  in  which  nothing  more  than  a  personal  judgment  is 
sought,  there  is  no  objection  to  a  subsequent  action  in  another 
jurisdiction,  either  before  or  after  judgment,  although  the  same 
issues  are  to  be  tried  and  determined ;  and  this  because  it  neither 
ousts  the  jurisdiction  of  the  court  in  which  the  fir.st  suit  was 
brought,  nor  does  it  delay  or  obstruct  the  exercise  of  that  jurisdic- 
tion, nor  lead  to  a  conflict  of  authority  where  each  court  acts  in 
accordance  with  law.  Stanton  v.  Embrey,  93  U.  S.  548,  23  L.  Ed. 
983 ;  8  Rose,  Notes,  1010.  The  doctrine  is  lucidly  stated  by  Judge 
Thayer  in  Merritt  v.  Steel  Barge  Co.,  supra} 


BUCK  V.  COLBATH. 

Supreme  Court  of  the  United  States.    1865. 

70  XJ.  8.  (3  Wallace)  334,  18  L.  Ed.  257. 

Colbath  sued  Buck  in  one  of  the  State  courts  of  Minnesota,  in 
an  action  of  trespass  for  taking  goods.  Buck  pleaded  in  defence, 
that  he  was  marshal  of  the  United  States  for  the  District  of  Min- 
nesota, and  that  having  in  his  hands  a  writ  of  attachment  against 
certain  parties  whom  he  named,  he  levied  the  same  upon  the  goods, 
for  taking  which  he  was  now  sued  by  Colbath.  But  he  did  not 
aver  that  they  were  the  goods  of  the  defendants  in  the  writ  of 
attachment.     *     *     * 

Upon  the  merits  of  the  case,  the  plaintiff  in  error  relies  mainly 
on  the  case  of  Freeman  v.  Howe,  decided  by  this  court,  and  upon 
the  opinion  by  which  the  court  sustained  the  decision. 

That  was  a  case  like  this  in  every  particular,  with  the  single 

1  Only  a  portion  of  the  opinion  is  reprinted. 

Wolverton,  District  Judge,  said,  in  Knudsen  v.  First  Trust  &  Savings  Bank, 
245  F.  81,  57  C.  C.  A.  377  (1917),  "Where  the  controversy  is  the  same  in 
actions  pending  in  courts  of  concurrent  jurisdiction  and  the  parties  are  the 
same,  the  general  rule,  supported  by  the  weight  of  authority,  seems  to  be  that 
the  court  first  acquiring  jurisdiction  of  the  controversy,  will  retain  it  to  the 
exclusion  of  the  other,  though  possession  of  the  res  be  not  taken,  through  a 
receiver  or  otherwise." — Ed. 


436  Cases  on  Federal  Procedure 

exception,  that  when  the  marshal  had  levied  the  writ  of  attachment 
on  certain  property,  a  writ  of  replevin  was  instituted  against  him 
in  the  State  Court,  and  the  property  taken  out  of  his  possession; 
while  in  the  present  case  the  officer  is  sued  in  trespass  for  the 
wrongful  seizure. 

In  that  case  it  was  held,  that  although  the  writ  of  attachment 
had  been  wrongfully  levied  upon  the  property  of  a  party  not 
named  in  the  writ,  the  rightful  owner  could  not  obtain  possession 
of  it  by  resort  to  the  courts  of  another  jurisdiction. 

It  must  be  confessed  that  this  decision  took  the  profession  gen- 
erally by  surprise,  overruling,  as  it  did,  the  unanimous  opinion 
of  the  Supreme  Court  of  Massachusetts — a  court  whose  opinions 
are  always  entitled  to  great  consideration — as  well  as  the  opinion 
of  Chancellor  Kent,  as  expressed  in  his  Commentaries.^ 

We  are,  however,  entirely  satisfied  with  it,  and  with  the  prin- 
ciple upon  which  it  is  founded;  a  principle  which  is  essential  to 
the  dignity  and  just  authoritj^  of  every  court,  and  to  the  comity 
which  should  regulate  the  relations  between  all  courts  of  concur- 
rent jurisdiction.  That  principle  is,  that  whenever  property  has 
been  seized  by  an  officer  of  the  court,  by  virtue  of  its  process,  the 
property  is  to  be  considered  as  in  the  custody  of  the  court,  and 
under  its  control  for  the  time  being,  and  that  no  other  court  has 
a  right  to  interfere  with  that  possession,  unless  it  be  some  court 
which  may  have  a  direct  supervisory  control  over  the  court  whose 
process  has  first  taken  possession,  or  some  superior  jurisdiction  in 
the  premises.  This  is  the  principle  upon  which  the  decision  of 
this  court  rested  in  Taylor  v.  Caryl,^  and  Hogan  v.  Lucas,'  both 
of  which  assert  substantially  the  same  doctrine. 

A  departure  from  this  rule  would  lead  to  the  utmost  confusion, 
and  to  endless  strife  between  courts  of  concurrent  jurisdiction 
deriving  their  powers  from  the  same  source;  but  how  much  more 
disastrous  would  be  the  consequence  of  such  a  course,  in  the  con- 
flict of  jurisdiction  between  courts  whose  powers  are  derived  from 
entirely  different  sources,  while  their  jurisdiction  is  concurrent 
as  to  the  parties  and  the  subject-matter  of  the  suit. 

This  principle,  however,  has  its  limitations;  or  rather  its  just 
definition  is  to  be  attended  to.  It  is  only  while  the  property  is  in 
possossion  of  the  court,  either  actually  or  constructively,  that  the 
court  is  bound,  or  professes  to  protect  that  possession  from  the 

IVol.   ii,   410. 
«20   Howard  583. 
810  Peters  400. 


Concurrent  Jurisdiction  437 

process  of  other  courts.  "Whenever  the  litigation  is  ended,  or  the 
possession  of  the  officer  or  court  is  discharged,  other  courts  are  at 
liberty  to  deal  with  it  according  to  the  rights  of  the  parties  before 
them,  whether  those  rights  require  them  to  take  possession  of  the 
property  or  not.  The  effect  to  be  given  in  such  cases  to  the  adjudi- 
cations of  the  court  first  possessed  of  the  property,  depends  upon 
principles  familiar  to  the  law ;  but  no  contest  arises  about  the 
mere  possession,  and  no  conflict  but  such  as  may  be  decided  with- 
out unseemly  and  discreditable  collisions. 

It  is  upon  this  ground  that  the  court,  in  Day  v.  Gallup,  held 
that  this  court  had  no  jurisdiction  of  that  case.  The  property 
attached  had  been  sold,  and  the  attachment  suit  ended,  when  the 
attaching  officer  and  his  assistants  were  sued,  and  we  held  that 
such  a  suit  in  the  State  Court  commenced  after  the  proceedings 
in  the  Federal  Court  had  been  concluded,  raised  no  question  for 
the  jurisdiction  of  this  court. 

It  is  obvious  that  the  action  of  trespass  against  the  marshal  in 
the  case  before  us  does  not  interfere  with  the  principle  thus  laid 
down  and  limited.  The  Federal  Court  could  proceed  to  render  its 
judgment  in  the  attachment  suit,  could  sell  and  deliver  the  prop- 
erty attached,  and  have  its  execution  satisfied,  without  any  dis- 
turbance of  its  proceedings,  or  any  contempt  of  its  process.  "While 
at  the  same  time,  the  State  Court  could  proceed  to  determine  the 
question  before  it  involved  in  the  suit  against  the  marshal,  with- 
out interfering  with  the  possession  of  the  property  in  dispute.* 


LEWIS  V.  THE  ORPHEUS. 

District  Court,  D.  Massachusetts.     1858. 

15  Fed.  Cos.  No.  8,330,  p.  492,  3  Wa/re  143. 

"Ware,  District  Judge. — The  first  question  which  arises  in  these 
eases  is  whether  the  court  has  jurisdiction.  The  right  of  the  court 
to  take  cognizance  of  the  subject-matter  is  not  questionable;  but 

4  Some  of  the  facts  are  omitted,  and  only  a  portion  of  the  opinion  is 
reprinted. 

See,  for  further  examples  of  this  doctrine,  Montgomery  v,  M'Dermott, 
87  Fed.  374,  376-377  (1898);  Hubinger  v.  Central  Trust  Co.,  94  Fed,  788, 
790-791,  36  C.  C.  A.  494,  496-497  (1899);  United  States  v.  Eisenbeis,  112 
Fed.  190,  194-195,  50  C.  C.  A.  179,  183-184  (1901).— Ed. 


438  Cases  on  Federal  Procedure 

the  Orpheus  was  attached  under  process  from  the  State  Court 
on  the  5th  of  March,  and  she  was  arrested  by  the  marshal 
under  process  from  this  court  on  the  15th.  If  the  vessel,  at  the 
time  when  the  marshal  served  his  precept,  was  in  custody  of  the 
sheriff,  it  is  well  settled  that  the  arrest  of  the  marshal  was  illegal 
and  void.  The  case  of  The  Robert  Fulton  (Case  No.  11,890),  and 
that  of  The  Oliver  Jordon  (Id.  10,503),  decided  at  the  last  term 
of  the  Circuit  Court  in  Maine  are  direct^  in  point.  It  is  said  by 
the  Supreme  Court,  that  under  our  system  of  government  there  is 
no  mode  of  preventing  an  embarrassing  and  dangerous  conflict 
of  jurisdiction  between  the  courts  of  the  States  and  those  of  the 
United  States,  but  to  consider  personal  property,  which  is  in  the 
custod}^  of  one  to  be  withdra^^^l  from  the  process  of  the  other, 
except  in  those  special  cases  provided  for  by  statute.  Act  March  2, 
1833,  4  Stat.  p.  634;  Harris  v.  Dennie,  3  Pet.  (28  U.  S.)  299; 
Hagan  v.  Lewis,  10  Pet.  (35  U.  S.)  401;  PuUiam  v.  Osborne,  17 
How.  (58  U.  S.)  471.  To  meet  this  difBculty,  it  is  said  that  in  the 
proceedings  under  the  state  process  there  were  fatal  irregularities 
and  defects,  which  render  the  whole  proceedings  void.  But  the 
ready  answer  is  that  the  case  is  still  pending  before  the  State  Court, 
and  the  question  whether  these  irregularities  are  fatal  must  be 
decided  there,  and  not  by  this  court.  It  may  be  a  good  reason 
why  these  libels  should  not  be  dismissed,  but  allowed  to  remain  on 
the  docket  till  that  case  is  decided.  If  the  State  Court  dismisses 
the  suits,  on  which  the  vessel  was  attached  by  the  sheriff,  it  may 
appear  that  the  seizure  of  the  marshal  was  lawful,  and  these  cases 
proceed  to  a  hearing.  But  until  it  is  ascertained  whether  this 
court  has  jurisdiction,  it  would  be  altogether  irregular  to  proceed 
to  a  final  decree.  When  the  sheriff  made  the  attachment  he  ap- 
pointed Mr.  Jameson  keeper,  and  put  him  in  possession  of  the 
ship.  The  keeper  was  examined,  and  he  says  that  he  remained 
keeper  for  seventeen  days,  two  or  three  days  after  the  arrest  by 
the  marshal.  At  the  time  when  he  went  aboard,  the  ship  was 
unfinished  and  the  carpenters  were  employed  in  completing  the 
joiner  work.  During  the  whole  time  the  weather  was  extremely 
cold,  and  no  fire  was  allowed  in  the  ship  ;  and  on  account  of  the 
severity  of  the  weather  tlie  keeper  did  not  remain  aboard  during 
the  niglits.  But  a.s  she  lay  at  the  wliarf  the  vessel  was  so  high  that 
there  was  no  entrance  aboard  but  by  a  ladder,  which  was  placed 
there  in  tlir-  morning  and  taken  a\v;iy  at  night,  and  tlie  keeper  was 
thfre  first  in  tlic  morning  before  tlic  laddci'  was  jnit  up,  and  last  in 
the  evening  when  it  was  removed.   Through  the  whole  period  of  his 


Concurrent  Jurisdiction  439 

custody,  in  the  day  time,  he  was  either  in  the  vessel  or  near  her, 
on  the  wharf  or  in  a  counting  room  where  the  vessel  was  in  plain 
sight,  and  was  at  no  time  during  the  day  out  of  sight  of  the  ship ; 
so  that  it  was  impossible  for  her  to  be  removed  without  his  knowl- 
edge. During  the  whole  time  joiners  were  at  work  on  the  vessel, 
and  many  persons  were  coming  and  going  to  visit  and  look  at  her, 
and  others  were  employed  in  taking  in  cargo.  Mr.  Jameson  says 
that  he  does  not  know  whether  he  was  in  the  vessel  or  not  when 
the  marshal  made  the  arrest,  he  not  knowing  personally  the  officer, 
and  that  he  did  not  know  of  the  arrest  until  two  or  three  days 
after  it  was  made,  when  he  notified  the  marshal's  keeper  of  his 
possession.  Such  are  the  facts  with  respect  to  the  sheriff's  custody, 
and  the  question  is  whether  it  was  sufficient  to  satisfy  the  law. 
My  opinion  is  that  it  was.  The  nature  and  kind  of  possession  of 
personal  property  that  is  required  of  an  officer  to  preserve  an  at- 
tachment depends  on  the  nature  of  the  property.  Light  articles 
of  small  value  may  properly  be  removed  and  kept  in  immediate 
possession.  But  this  is  impracticable  with  large  art^^cles  upon  a 
ship.  All  that  is  necessary,  in  respect  to  such  articles,  is  that  the 
custody  be  such  as  will  enable  the  keeper  to  assert  his  possessory 
rights  and  prevent  its  being  withdrawn  without  his  knowledge. 
So  it  has  been  adjudged  by  the  Supreme  Court  of  the  State.  Wherp 
heavy  blocks  of  granite  were  attached  and  put  in  possession  of  a 
keeper,  whose  house  was  within  sight  of  them,  and  who  passed 
them  daily  in  going  to  and  from  his  work,  this  was  held  to  be  a 
sufficient  possession  without  removing  them.  Sanderson  v.  Ed- 
wards, 16  Pick.  144 ;  Hemmenway  v.  Wheeler,  14  Pick.  408.* 


ABLEMAN  v.  BOOTH  and  UNITED  STATES  v.  BOOTH. 

Supreme  Court  of  the  United  States.    1858. 

62  U.  S.  (21  Howard)  506,  16  L.  Ed.  169. 

Mb.  Chiep  Justice  Tannet  delivered  the  opinion  of  the  court. 

We  do  not  question  the  authority  of  the  State  Court,  or  judge, 
who  is  authorized  by  the  laws  of  the  State  to  issue  the  writ  of 

1  Only  a   portion   of  the  opinion   is  reprinted. 

For  another  case  on  what  amounts  to   possession,   see   Holland   Trust  Ck). 
V.  International  Bridge  &  Tramway  Co.,  85  Fed.  865,  29  C.  C.  A.  460.— Ed. 


440  Cases  on  Federal  Procedure 

habeas  corpus,  to  issue  it  in  any  case  where  the  party  is  imprisoned 
within  its  territorial  limits,  provided  it  does  not  appear,  when  the 
application  is  made,  that  the  person  imprisoned  is  in  custody  under 
the  authority  of  the  United  States.  The  court  or  judge  has  a 
right  to  inquire,  in  this  mode  of  proceeding,  for  what  causes  and 
by  what  authority  the  prisoner  is  confined  within  the  territorial 
limits  of  the  State  sovereignty.  And  it  is  the  duty  of  the  marshal, 
or  other  person  having  the  custody  of  the  prisoner,  to  make  known 
to  the  judge  or  court,  by  a  proper  return,  the  authority  by  which 
he  holds  him  in  custody.  This  right  to  inquire  by  process  of 
habeas  corpus,  and  the  duty  of  the  officer  to  make  a  return,  grows, 
necessarily,  out  of  the  complex  character  of  our  Government,  and 
the  existence  of  two  distinct  and  separate  sovereignties  within  the 
same  territorial  space,  each  of  them  restricted  in  its  powers,  and 
each  within  its  sphere  of  action,  prescribed  by  the  Constitution  of 
the  United  States,  independent  of  the  other.  But,  after  the  re- 
turn is  made,  and  the  State  Judge  or  court  judicially  apprized 
that  the  party  is  in  custody  under  the  authority  of  the  United 
States,  they  can  proceed  no  further.  They  then  know  that  the 
prisoner  is  within  the  dominion  and  jurisdiction  of  another  Govern- 
ment, and  that  neither  the  writ  of  habeas  corpus,  nor  any  other 
process  issued  under  the  State  authority,  can  pass  over  the  line 
of  division  between  the  two  sovereignties.  He  is  then  within  the 
dominion  and  exclusive  jurisdiction  of  the  United  States.  If  he 
has  committed  an  offense  against  their  laws,  their  tribunal  alone  can 
punish  him.  If  he  is  wrongfully  imprisoned,  their  judicial  trib- 
unals can  release  him  and  afford  him  redress.  And  although,  as 
we  have  said,  it  is  the  duty  of  the  marshal,  or  other  person  holding 
him,  to  make  known,  by  a  proper  return,  the  authority  under 
which  he  detains  him,  it  is  at  the  same  time  imperatively  his  duty 
to  obey  the  process  of  the  United  States,  to  hold  the  prisoner  in 
custody  under  it,  and  to  refuse  obedience  to  the  mandate  or  proc- 
ess of  any  other  Government.  And  consequently  it  is  his  duty 
not  to  take  the  prisoner,  nor  suffer  him  to  be  taken,  before  a  State 
judge  or  court  upon  a  habeas  corpus  issued  under  State  authority. 
No  State  judge  or  court,  after  they  are  judicially  informed  that 
the  party  is  imprisoned  under  the  authority  of  the  United  States, 
has  any  right  to  interfere  with  him,  or  to  require  him  to  be  brought 
before  them.  And  if  the  authority,  of  a  State,  in  the  form  of 
judicial  process  or  otherwise,  should  attempt  to  control  the  mar- 
shal or  other  authorized  officer  or  agent  of  the  United  States,  in 
any  respect,  in  the  custody  of  his  prisoner,  it  would  be  his  duty 


Concurrent  Jurisdiction  441 

to  resist  it,  and  to  call  to  his  aid  any  force  that  might  be  necessary 
to  maintain  the  authority  of  law  against  illegal  interference.  No 
judicial  process,  whatever  form  it  may  assume,  can  have  any  law- 
ful authority  outside  of  the  limits  of  the  jurisdiction  of  the  court 
or  judge  by  whom  it  is  issued;  and  an  attempt  to  enforce  it  be- 
yond these  boundaries  is  nothing  less  than  lawless  violence.^ 


Ex  Parte  CROUCH. 

Supreme  Court  of  the  United  States.    1884. 

112  V.  S.  178,  5  S.  Ct.  96,  28  L.  Ed.  690. 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

This  petition  is  denied.  The  general  revenue  law  of  Virginia 
provides  that  no  person  shall  do  business  in  the  State  as  a  "  sample 
merchant"  until  he  has  obtained  a  license  therefor,  on  payment  of 
a  tax  of  seventy-five  dollars;  and  that,  if  he  does,  he  shall  pay  a 
fine  of  five  hundred  dollars  for  the  first  offense,  and  six  hundred 
dollars  for  each  succeeding  offense.  Acts  of  Virginia,  1884,  ch.  445, 
§§  30,  31,  pp.  578,  579.  The  petitioner  has  been  informed  against, 
and  is  now  held  in  custody  for  trial  by  order  of  the  Hustings 
Court  of  the  City  of  Richmond,  for  a  violation  of  this  law.  Accord- 
ing to  the  statements  in  the  petition  presented  to  us,  the  defense 
of  the  petitioner,  upon  the  trial  of  that  case,  will  be  a  tender  by 
him,  before  commencing  business,  to  the  proper  revenue  officer  of 
the  State,  of  the  amount  of  the  required  license  tax,  in  coupons 
cut  from  State  bonds,  which  the  State  when  it  issued  the  bonds 
agreed  should  be  receivable  in  payment  of  all  State  dues;  and  a 
refusal  of  the  officer  to  accept  the  tender  and  give  a  proper  cer- 
tificate therefor,  because  by  a  statute,  enacted  after  the  issue  of 
the  bonds,  the  tax-receiving  officers  were  prohibited  from  taking 
the  coupons  for  this  tax.  The  right  of  the  petitioner  to  a  writ 
of  habeas  corpus  from  this  court  is  put  in  the  petition  on  the 
ground  that  the  petitioner  is  detained  in  custody  by  the  State 
Court,  in  violation  of  the  Constitution  of  the  United  States,  be- 
cause the  statute  which  prohibits  the  officer  from  accepting  the 
coupons  impairs  the  obligation  of  the  contract  of  the  State  to  re- 
ceive them,  and  is  on  that  account,  inoperative  and  void,  by  reason 


1  Only  a  portion  of  the  opinion  is  reprinted. — Ed. 


442  Cases  on  Federal  Procedure 

of  the  provision  of  the  Constitution  which  precludes  the  State 
from  passing  such  laws. 

It  is  not  claimed  that  the  law  which  imposes  the  tax  and  fixes 
the  penalty  for  doing  business  without  its  payment  is  unconstitu- 
tional. Neither  is  it  pretended  that  the  Hustings  Court  has  not 
plenary  jurisdiction  for  the  trial  of  persons  charged  with  a  viola- 
tion of  the  law.  The  petitioner  is,  therefore,  in  the  custody  of  a 
State  Court  of  competent  jurisdiction,  and  held  for  trial  upon  an 
information  for  violating  a  criminal  statute  of  the  State.  He 
seeks  to  be  discharged  by  habeas  corpus,  not  because,  if  guilty  of 
the  charge  which  has  been  made  against  him,  the  court  is  without 
jurisdiction  to  hold  him  for  trial,  and  to  convict  and  sentence 
him,  but  because,  as  he  alleges,  he  has  a  valid  defense  to  the 
charge,  which  grows  out  of  a  provision  in  the  Constitution  of 
the  United  States,  and,  for  this  reason,  he  insists  he  is  detained 
in  violation  of  the  Constitution.  It  is  elementary  learning  that, 
if  a  prisoner  is  in  the  custody  of  a  State  Court  of  competent  ju- 
risdiction, not  illegally  asserted,  he  cannot  be  taken  from  that 
jurisdiction  and  discharged  on  habeas  corpus  issued  by  a  court 
of  the  United  States,  simply  because  he  is  not  guilty  of  the  offense 
for  which  he  is  held.  All  questions  which  may  arise  in  the  orderly 
course  of  the  proceeding  against  him  are  to  be  determined  by  the 
court  to  whose  jurisdiction  he  has  been  subjected,  and  no  other 
court  is  authorized  to  interfere  to  prevent  it.  Here  the  right  of 
the  prisoner  to  a  discharge  depends  alone  on  the  sufficiency  of  his 
defense  to  the  information  under  which  he  is  held.  Whether  his 
defense  is  sufficient  or  not  is  for  the  court  which  tries  him  to  de- 
termine. If  in  this  determination  errors  are  committed,  they  can 
only  be  corrected  in  an  appropriate  form  of  proceeding  for  that 
purpose.  The  office  of  a  writ  of  habeas  corpus  is  neither  to  cor- 
rect such  errors,  nor  to  take  the  prisoner  away  from  the  court 
which  holds  him  for  trial,  for  fear,  if  he  remains,  they  may  be  com- 
mitted. Authorities  to  this  effect  in  our  own  reports  are  num- 
erous. Ex  parte  Watkins,  3  Pet.  202;  Ex  parte  Lange,  18  Wall. 
163,  166;  Ex  parte  Parks,  92  U.  S.  18,  23;  Ex  parte  Siebold,  100 
U.  S.  371,  374;  Ex  parte  Virginia,  Id.  339,  343;  Ex  parte  Rowland^ 
104  U.  S.  604,  612;  Ex  parte  Curtis,  106  U.  S.  371,  375;  Ex  parte 
Yarbrough,  110  U.  S.  651,  653.  Of  course,  what  is  here  said  has 
no  application  to  writs  of  habeas  corpus  cum  causa  issued  by  the 
courts  of  tlie  United  States,  in  aid  of  their  jurisdiction,  upon  the  re- 
moval of  suits  or  prosecutions  from  State  courts  for  trial  under 
the  autliority  of  an  act  of  Congress. 

Denied. 


APPENDIX 


APPENDIX 


THE  JUDICIAL  CODE 

An  Act  To  codify,  revise,  and  amend  the  laws  relating  to  the 

judiciary. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled,  That  the 
laws  relating  to  the  judiciary  be,  and  they  hereby  are,  codified, 
revised,  and  amended,  with  title,  chapters,  head-notes,  and  sections, 
entitled,  numbered,  and  to  read  as  follows : 

TITLE 

The  Judiciary 

CHAPTER  I 

DISTRICT   COURTS— ORGANIZATION 

§    1.  District  courts  established — Appointment  and  residence  of  judges. 

§    2.  Salaries  of  district  judges. 

§    3.  Clerks. 

§    4.  Deputy  clerks. 

§    5.  Criers  and  bailiffs. 

§    6.  Records — Where  kept. 

§    7.  Effect  of  altering  terms. 

§    8.  Trials  not  discontinued  by  new  term. 

S    9.  Court  always  open  as  courts  of  admiralty  and  equity. 

§  10.  Monthly  adjournments  for  trial  of  criminal  causes. 

§  11.  Special  terms. 

§  12.  Adjournment  in  case  of  nonattendance  of  judge. 

§  13.  Designation  of  another  judge  in  case  of  disability  of  judge. 

§  14.  Designation  of  another  judge  in  case  of  an  accumulation  of  business. 

§  15.  When  designation  to  be  made  by  Chief  Justice. 

§  16.  New  appointment  and  revocation. 

§  17.  Designation  of  district  judge  in  aid  of  another  judge. 

§  18.  When  circuit  judge  may  be  designated  to  hold  district  court. 

§  19.  Duty  of  district  and  circuit  judge  in  such  cases. 

§  20.  When  district  judge  is  interested  or  related  to  parties. 

445 


446  Appendix 

§  21.  When  affidavit  of  personal  bias  or  prejudice  of  judge  is  filed. 

§  22.  Continuance  in  case  of  vacancy  in  office. 

§  23.  Districts  having  more  than  one  judge — Division  of  business. 

§  1.  In  each  of  the  districts  described  in  Chapter  V  there  shall 
be  a  court  called  a  district  court,  for  which  there  shall  be  appointed 
one  judge,  to  be  called  a  district  judge ;  except  that  in  the  northern 
district  of  California,  the  northern  district  of  Illinois,  the  district 
of  Maryland,  the  district  of  Minnesota,  the  district  of  Nebraska, 
the  district  of  New  Jersey,  the  eastern  district  of  New  York,  the 
northern  and  southern  districts  of  Ohio,  the  district  of  Oregon, 
the  eastern  and  western  districts  of  Pennsylvania,  and  the  western 
district  of  Washington,  there  shall  be  an  additional  district  judge 
in  each,  and  in  the  southern  district  of  New  York,  three  additional 
district  judges:  Provided,  That  there  shall  be  one  judge  for  the 
eastern  and  western  districts  of  South  Carolina,  one  judge  for  the 
eastern  and  middle  districts  of  Tennessee,  and  one  judge  for  the 
northern  and  southern  districts  of  Mississippi:  Provided  further, 
That  the  district  judge  for  the  middle  district  of  Alabama  shall 
continue  as  heretofore  to  be  a  district  judge  for  the  northern 
district  thereof.  Every  district  judge  shall  reside  in  the  district 
or  one  of  the  districts  for  which  he  is  appointed,  and  for  offending 
against  this  provision  shall  be  deemed  guilty  of  a  high  mis- 
demeanor. 

Amended  by  the  Act  of  July  ;iOth,  1914,  c.  216  (38  Stat.  L.  580). 

By  the  Act  of  February  16,  1914,  c.  20  (38  Stat.  283)  provisions  were  made 
in  relation  to  the  Eastern  District  of  Pennsylvania  and  the  Southern  District 
of  Georgia. 

By  the  Act  of  March  3,  1915,  c.  100  (38  Stat.  L.  961)  provisions  were  made 
in  relation  to  the  Eastern  and  Western  Districts  of  South  Carolina. 

By  the  Act  of  April  11,  1916,  c.  64  (39  Stat.  L.  48)  an  additional  judge 
was  provided  for  the  district  of  New  Jersey. 

By  the  Act  of  February  26,  1917,  c.  120  (39  Stat.  L.  938)  provision  for  an 
additional  judge  for  the  Western  District  of  Texas  was  made. 

§  2.  Each  of  the  district  judges,  including  the  judges  in  Porto 
Kico,  Hawaii,  and  Alaska  exercising  Federal  jurisdiction,  shall 
receive  a  salary  of  ^TjijOO  a  year,  to  be  paid  in  monthly  in- 
stallments. 

Am.-ndc'd  by  the  Act  of  February  2.'".,  1919,  c  29   (40  Stat.  L.  1156). 

§  3.  A  clf-rk  sluill  lie  }ii)p()iiif<'(l  for  each  district  court  by  the 
judge  tli('rc(»f,  <'.\c('|,l   in  cjiscs  ollicrwisc  pi-ovidrd  for  by  law. 


The  Judiciax,  Code  447 

§  4.  Except  as  otherwise  specially  provided  by  law,  the  clerk 
of  the  district  court  for  each  district  may,  with  the  approval  of 
the  district  judge  thereof,  appoint  such  number  of  deputy  clerks 
as  may  be  deemed  necessary  by  such  judge,  who  may  be  designated 
to  reside  and  maintain  offices  at  such  places  of  holding  court  as 
the  judge  may  determine.  Such  deputies  may  be  removed  at  the 
pleasure  of  the  clerk  appointing  them,  with  the  concurrence  of  the 
district  judge.  In  case  of  the  death  of  the  clerk,  his  deputy  or 
deputies  shall,  unless  removed,  continue  in  office  and  perform  the 
duties  of  the  clerk,  in  his  name,  until  a  clerk  is  appointed  and 
qualified ;  and  for  the  default  or  misfeasances  in  office  of  any  such 
deputy,  whether  in  the  lifetime  of  the  clerk  or  after  his  death, 
the  clerk  and  his  estate  and  the  sureties  on  his  official  bond  shall 
be  liable ;  and  his  executor  or  administrator  shall  have  such  remedy 
for  any  such  default  or  misfeasances  committed  after  his  death  as 
the  clerk  would  be  entitled  to  if  the  same  had  occurred  in  his 
lifetime. 

§  5.  The  district  court  for  each  district  may  appoint  a  crier  for 
the  court ;  and  the  marshal  may  appoint  such  number  of  persons, 
not  exceeding  five,  as  the  judge  may  detennine,  to  wait  upon  the 
grand  and  other  juries,  and  for  other  necessary  purposes. 

§  6.  The  records  of  a  district  court  shall  be  kept  at  the  place 
where  the  court  is  held.  Wlien  it  is  held  at  more  than  one  place 
in  any  district  and  the  place  of  keeping  the  records  is  not  specially 
provided  by  law,  they  shall  be  kept  at  either  of  the  places  of 
holding  the  court  which  may  be  designated  by  the  district  judge. 

§  7.  No  action,  suit,  proceeding  or  process  in  any  district  court 
shall  abate  or  be  rendered  invalid  by  reason  of  any  act  changing 
the  time  of  holding  such  court,  but  the  same  shall  be  deemed  to  be 
returnable  to,  pending,  and  triable  in  the  terms  established  next 
after  the  return  day  thereof. 

§  8.  When  the  trial  or  hearing  of  any  cause,  civil  or  criminal, 

in  a  district  court  has  been  commenced  and  is  in  progress  before 
a  jury  or  the  court,  it  shall  not  be  stayed  or  discontinued  by  the 
arrival  of  the  time  fixed  by  law  for  another  session  of  said  court ; 
but  the  court  may  proceed  therein  and  bring  it  to  a  conclusion  in 
the  same  manner  and  with  the  same  effect  as  if  another  stated 
term  of  the  court  had  not  intervened. 


448  Appendix 

§  9.  The  district  courts,  as  courts  of  admiralty  and  as  courts  of 
equity,  shall  be  deemed  always  open  for  the  purpose  of  filing  any 
pleading,  of  issuing  and  returning  mense  and  final  process,  and 
of  making  and  directing  all  interlocutory  motions,  orders,  rules, 
and  other  proceedings  preparatory  to  the  hearing,  upon  their 
merits,  of  all  causes  pending  therein.  Any  district  judge  may, 
upon  reasonable  notice  to  the  parties,  make,  direct,  and  award, 
at  chambers  or  in  the  clerk's  office,  and  in  vacation  as  well  as  in 
term,  all  such  process,  commissions,  orders,  rules,  and  other  pro- 
ceedings, whenever  the  same  are  not  grantable  of  course,  according 
to  the  rules  and  practice  of  the  court. 

§  10.  District  courts  shall  hold  monthly  adjournments  of  their 
regular  terms,  for  the  trial  of  criminal  causes,  when  their  business 
requires  it  to  be  done,  in  order  to  prevent  undue  expenses  and 
delays  in  such  cases. 

§  11.  A  special  term  of  any  district  court  may  be  held  at  the 
same  place  where  any  regular  term  is  held,  or  at  such  other  place 
in  the  district  as  the  nature  of  the  biisiness  may  require,  and  at 
such  time  and  upon  such  notice  as  may  be  ordered  by  the  district 
judge.  Any  business  may  be  transacted  at  such  special  term  which 
might  be  transacted  at  a  regular  term. 

§  12.  If  the  judge  of  any  district  court  is  unable  to  attend  at 
the  commencement  of  any  regular,  adjourned,  or  special  term,  or 
any  time  during  such  term,  the  court  may  be  adjourned  by  the 
marslial,  or  clerk,  by  virtue  of  a  written  order  directed  to  him  by 
the  judge,  to  the  next  regular  term,  or  to  any  earlier  day,  as  the 
order  may  direct. 

§  13.  When  any  district  judge  is  prevented,  by  any  disability, 
from  holding  any  stated  or  appointed  term  of  his  district  court, 
and  that  fact  is  made  to  appear  by  the  certificate  of  the  clerk, 
under  the  seal  of  the  court,  to  any  circuit  judge  of  the  circuit  in 
which  the  district  lies,  or,  in  the  absence  of  all  the  circuit  judges, 
to  tiie  circuit  justice  of  the  circuit  in  which  the  district  lies,  any 
such  circuit  judge  or  justice  may,  if  in  his  judgment  the  public 
interests  so  require,  designate  and  appoint  the  judge  of  any  other 
district  in  the  same  circuit  to  hold  said  court,  and  to  discharge  all 
the  judicial  duties  of  the  judge  so  disabled,  during  such  disability. 


The  Judicial  Code  449 

Whenever  it  shall  be  certified  bj'  any  such  circuit  jndge  or,  in  his 
absence,  by  the  circuit  justice  of  the  circuit  in  which  the  district 
lies,  that  for  any  sufficient  reason  it  is  impracticable  to  designate 
and  appoint  a  judge  of  another  district  within  the  circuit  to  per- 
form the  duties  of  such  disabled  judge,  the  chief  justice  may,  if 
in  his  judgment  the  public  interests  so  require,  designate  and  ap- 
point the  judge  of  any  district  in  another  circuit  to  hold  said  court 
and  to  discharge  all  the  judicial  duties  of  the  judge  so  disabled, 
during  such  disability.  Such  appointment  shall  be  tiled  in  the 
clerk's  office,  and  entered  on  the  minutes  of  the  said  district  court, 
and  a  certified  copy  thereof,  under  the  seal  of  the  court,  shall  be 
transmitted  by  the  clerk  to  the  judge  so  designated  and  appointed. 

§  14.  When,  from  the  accumulation  or  urgency  of  business  in 
any  district  court,  the  public  interests  require  the  designation  and 
appointment  hereinafter  provided,  and  the  fact  is  made  to  appear, 
by  the  certificate  of  the  clerk,  under  the  seal  of  the  court,  to  any 
circuit  judge  of  the  circuit  in  which  the  district  lies,  or,  in  the 
absence  of  all  the  circuit  judges,  to  the  circuit  justice  of  the  circuit 
in  which  the  district  lies,  such  circuit  judge  or  justice  may  desig- 
nate and  appoint  the  judge  of  any  other  district  in  the  same 
circuit  to  have  and  exercise  within  the  district  first  named  the 
same  powers  that  are  vested  in  the  judge  thereof.  Each  of  the 
said  district  judges  may,  in  case  of  such  appointment,  hold  sep- 
arately at  the  same  time  a  district  court  in  such  district,  and  dis- 
charge all  the  judicial  duties  of  the  district  judge  therein. 

§  15.  If  all  the  circuit  judges  and  the  circuit  justice  are  absent 
from  the  circuit,  or  are  unable  to  execute  the  provisions  of  either 
of  the  two  preceding  sections,  or  if  the  district  judge  so  designated 
is  disabled  or  neglects  to  hold  the  court  and  transact  the  business 
for  which  he  is  designated,  the  clerk  of  the  district  court  shall 
certify  the  fact  to  the  chief  justice  of  the  United  States,  who  may 
thereupon  designate  and  appoint  in  the  manner  aforesaid  the  judge 
of  any  district  within  such  circuit  or  within  any  other  circuit ;  and 
said  appointment  shall  be  transmitted  to  the  clerk  and  be  acted 
upon  by  him  as  directed  in  the  preceding  section. 

§  16.  Any  such  circuit  judge,  or  circuit  justice,  or  the  chief 
justice,  as  the  case  may  be,  may,  from  time  to  time,  if  in  his  judg- 
ment the  public  interests  so  require,  make  a  new  designation  and 
Wheaton  C.  F.  P.— 29 


450  Appendix 

appointment  of  any  other  district  judge,  in  the  manner,  for  the 
duties,  and  with  the  powers  mentioned  in  the  three  preceding  sec- 
tions, and  revoke  any  previous  designation  and  appointment. 

§  17.  It  shall  be  the  duty  of  the  senior  circuit  judge  then 
present  in  the  circuit,  whenever  in  his  judgment  the  public  interest 
so  requires,  to  designate  and  appoint,  in  the  manner  and  with  the 
powers  provided  in  section  fourteen,  the  district  judge  of  any 
judicial  district  within  his  circuit  to  hold  a  district  court  in  t\ie 
place  or  in  aid  of  any  other  district  judge  within  the  same  circuit. 

§  18.  "Whenever,  in  the  judgment  of  the  senior  circuit  judge  of 
the  circuit  in  which  the  district  lies,  or  of  the  circuit  justice 
assigned  to  such  circuit,  or  of  the  chief  justice,  the  pviblic  interest 
shall  require,  the  said  judge,  or  associate  justice,  or  chief  justice, 
shall  designate  and  appoint  any  circuit  judge  of  the  circuit  to 
hold  said  district  court.  "Whenever  it  shall  be  certified  by  the  senior 
circuit  judge  of  the  second  circuit,  or,  in  his  absence,  by  the  circuit 
justice  of  said  circuit,  that  on  account  of  the  accumulation  or  ur- 
gency of  business  in  any  district  court  of  said  circuit  it  is  imprac- 
ticable to  designate  and  appoint  a  sufficient  number  of  district 
judges  of  other  districts  within  said  circuit  to  relieve  such  accumu- 
lation or  urgency  of  business,  the  chief  justice  may,  if  in  his  judg- 
ment the  public  interests  so  require,  designate  and  appoint  the 
judge  of  any  district  court  in  another  circuit  to  hold  a  district  court 
within  the  said  second  circuit,  and  to  have  and  exercise  within  the 
district  to  which  he  is  so  assigned  the  same  powers  that  are  vested  in 
the  judge  thereof:  Trovided,  That  such  judge  so  designated  and 
appointed  shall  have  consented,  in  writing,  to  such  designation  and 
appointment:  And  provided  purfhfr.  That  the  senior  circuit  judge 
of  the  circuit  within  which  such  judge  so  designated  and  appointed 
resides  shall  certify,  in  writing,  that  the  business  of  the  district  of 
such  judge  will  not  suffer  thereby.  Such  appointment  shall  be 
filed  in  the  clerk's  office  and  entered  on  the  minutes  of  the  said 
district  court,  and  a  certified  copy  thereof,  under  the  seal  of  the 
court,  sliall  be  transmitted  by  the  clerk  to  the  judge  so  designated 
and  appointed.  Each  of  the  said  district  judges  may  in  the  case 
of  such  appointment,  hold  separately,  at  the  same  time,  a  district 
court  in  such  district,  and  discharge  all  of  the  judicial  duties  of 
tiu!  district  judge  therein. 

Amended  by  Art  of  October  :$,  1913,  c.  18  (38  Stat.  L.  137). 


The  Judicial  Code  451 

§  19.  It  shall  be  the  duty  of  the  district  or  circuit  judge  who  is 
designated  and  appointed  under  either  of  the  six  preceding  sec- 
tions, to  discharge  all  the  judicial  duties  for  which  he  is  so  ap- 
pointed, during  the  time  for  which  he  is  so  appointed ;  and  all  the 
acts  and  proceedings  in  the  courts  held  by  him,  or  by  or  before 
him,  in  pursuance  of  said  provisions,  shall  have  the  same  effect  and 
validity  as  if  done  by  or  before  the  district  judge  of  the  said 
district. 

§20.  Whenever  it  appears  that  the  judge  of  any  district  court 
is  in  any  way  concerned  in  interest  in  any  suit  pending  therein, 
or  has  been  of  counsel  or  is  a  material  witness  for  either  party, 
or  is  so  related  to  or  connected  with  either  party  as  to  render 
it  improper,  in  his  opinion,  for  him  to  sit  on  the  trial,  it  shall 
be  his  duty,  on  application  by  either  party  to  cause  the  fact 
to  be  entered  on  the  records  of  the  court ;  and  also  an  order  that 
an  authenticated  copy  thereof  shall  be  forthwith  certified  to  the 
senior  circuit  judge  for  said  circuit  then  present  in  the  circuit ; 
and  thereupon  such  proceedings  shall  be  had  as  are  provided  in 
section  14. 

§  21.  Whenever  a  party  to  any  action  or  proceeding,  civil  or 
criminal,  shall  make  and  file  an  afSdavit  that  the  judge  before 
whom  the  action  or  proceeding  is  to  be  tried  or  heard  has  a  per- 
sonal bias  or  prejudice  either  against  him  or  in  favor  of  any 
opposite  party  to  the  suit,  such  judge  shall  proceed  no  further 
therein,  but  another  judge  shall  be  designated  in  the  manner  pre- 
scribed in  the  section  last  preceding,  or  chosen  in  the  manner  pre- 
scribed in  section  23,  to  hear  such  matter.  Every  such  af^davit 
shall  state  the  facts  and  the  reasons  for  the  belief  that  such  bias 
or  prejudice  exists,  and  shall  be  filed  not  less  than  ten  days  before 
the  beginning  of  the  term  of  the  court,  or  good  cause  shall  be 
shown  for  the  failure  to  file  it  within  such  time.  No  party  shall  be 
entitled  in  any  case  to  file  more  than  one  such  affidavit ;  and  no 
such  affidavit  shall  be  filed  unless  accompanied  by  a  certificate  of 
counsel  of  record  that  such  affidavit  and  application  are  made  in 
good  faith.  The  same  proceedings  shall  be  had  when  the  presiding 
judge  shall  file  with  the  clerk  of  the  court  a  certificate  that  he 
deems  himself  unable  for  any  reason  to  preside  Avith  absolute  im- 
partiality in  the  pending  suit  or  action. 

§  22.  When  the  office  of  judge  of  any  district  court  becomes 
vacant,  all  process,  pleadings,  and  proceedings  pending  before  such 


452  Appendix 

court  shall,  if  necessary,  be  continued  by  the  clerk  thereof  until 
such  times  as  a  judge  shall  be  appointed,  or  designated  to  hold 
such  court ;  and  the  judge  so  designated,  while  holding  such  court, 
shall  possess  the  powers  conferred  by,  and  be  subject  to  the  pro- 
visions contained  in,  section  19. 

§  23.  In  districts  having  more  than  one  district  judge,  the 
judges  may  agree  upon  the  division  of  business  and  assignment 
of  cases  for  trial  in  said  district ;  but  in  case  they  do  not  so  agree, 
the  senior  circuit  judge  of  the  circuit  in  which  the  district  lies, 
shall  make  all  necessary  orders  for  the  division  of  business  and  the 
assignment  of  cases  for  trial  in  said  district. 


CHAPTER  II 

DISTRICT  COURTS— JUEISDICTION 

24.  Original  jurisdiction. 

Par.     1.  Where    the    United    States    are    plaintiffs — And    of    civU 
suits  at  common  law  or  in  equity. 

2.  Of  crimes  and  offenses. 

3.  Of  admiralty  causes,  seizures,  and  prizes. 

4.  Of  suits  under  any  law  relating  to  the  slave  trade. 

5.  Of    cases    under    internal    revenue,    customs   and   tonnage 

laws. 

6.  Of  suits  under  postal  laws. 

7.  Of  suits  under  the  patent,  the  copyright,  and  the  trade- 

mark laws. 

8.  Of  suits  for  violation  of  interstate  commerce  laws. 

9.  Of  penalties  and  forfeitures. 

10.  Of  suits  on  dcl)entures. 

11.  Of  suits  for  injuries  on  account  of  acts  done  under  laws 

of  the  United  States. 

12.  Of  suits  concerning  civil   rights. 

13.  Of  suits  against  persons  having  knowledge  of  conspiracy, 

etc. 

14.  Of  suits    to    redress   the    deprivation,  under   color   of   law, 

of  civil  rights. 

15.  Of  suits  to  recover  certain  oflSces. 

16.  Of  suits  against  national-banking  associations. 

17.  Of  suits  by  alien  for  torts. 

18.  Of  suits  against  consuls  and  vice-consuls. 

19.  Of  suits  and  proceedings  in  bankruptcy. 

20.  Of  suits  against  the  Ignited  States. 

21.  Of  suits  for  the  unlawful  indosure  of  public  lands, 
lili.  Of  ^<uits  under  immigration  and  contract-labor  laws. 


The  Judicial  Code  453 

23.  Of  suits    against    trusts,   monopolies,   and   unlawful   com- 
binations. 

I24.  Of  suits  concerning  allotments  of  land  to  Indians. 

25.  Of  partition  suits  where  United  States  is  joint  tenant. 
§  25.  Appellate  jurisdiction  under  Chinese  exclusion  laws. 
§  26.  Appellate  jurisdiction  over  Yellowstone  National  Park. 
§  27.  Jurisdiction  of  crimes  on  Indian  reservations  in  South  Dakota. 

§  24.  The  district  courts  shall  have  original  jurisdiction  as  fol- 
lows : 

First.  Of  all  suits  of  a  civil  nature,  at  common  law  or  in  equity, 
brought  by  the  United  States,  or  by  any  officer  thereof  authorized 
by  law  to  sue  or  between  citizens  of  the  same  state  claiming  lands 
under  grants  from  different  states  or,  where  the  matter  in  con- 
troversy exceeds,  exclusive  of  interest  and  costs,  the  sum  or  value 
of  three  thousand  dollars,  and  (a)  arises  under  the  Constitution 
or  laws  of  the  United  States,  or  treaties  made,  or  which  shall  be 
made,  under  their  authority,  or  (b)  is  between  citizens  of  different 
states,  or  (c)  is  between  citizens  of  a  state  and  foreign  states, 
citizens,  or  subjects.  No  district  court  shall  have  cognizance  of 
any  suit  (except  upon  foreign  bills  of  exchange)  to  recover  upon 
any  promissory  note  or  other  chose  in  action  in  favor  of  any 
assignee,  or  of  any  subsequent  holder  if  such  instrument  be  pay- 
able to  bearer  and  be  not  made  by  any  corporation,  unless  such 
suit  might  have  been  prosecuted  in  such  court  to  recover  upon  said 
note  or  other  chose  in  action  if  no  assignment  had  been  made: 
Provided,  however,  That  the  foregoing  provision  as  to  the  sum  or 
value  of  the  matter  in  controversy  shall  not  be  constnied  to  apply 
to  any  of  the  cases  mentioned  in  the  succeeding  paragraphs  of  this 
section. 

Second.  Of  all  crimes  and  offenses  cognizable  under  the 
authority  of  the  United  States. 

Third.  Of  all  civil  causes  of  admiralty  and  maritime  jurisdic- 
tion, saving  to  suitors  in  all  cases  the  right  of  a  common-law  remedy 
where  the  common  law  is  competent  to  give  it,  and  to  claimants 
the  rights  and  remedies  under  the  workmen's  compensation  law 
of  any  State;  of  all  seizures  on  land  or  waters  not  within  ad- 
miralty and  maritime  jurisdiction;  of  all  prizes  brought  into  the 
United  States;  and  of  all  proceedings  for  the  condemnation  of 
property  taken  as  prize. 

Amended  by  Act  of  Oct.  6,  1917,  c.  97  (40  Stat.  L.  395). 


454  ~  Appendix 

Fourth.  Of  all  suits  arising  under  any  law  relating  to  the  slave 
trade. 

Fifth.  Of  all  cases  arising  under  any  law  providing  for  internal 
revenue,  or  from  revenue  from  imports  or  tonnage,  except  those 
cases  arising  under  any  law  providing  revenue  from  imports,  juris- 
diction of  which  has  been  conferred  upon  the  court  of  customs 
appeals. 

Sixth.    Of  all  cases  arising  under  the  postal  laws. 

Seventh.  Of  all  suits  at  law  or  in  equity  arising  under  the 
patent,  the  copyright,  and  the  trade-mark  laws. 

Eighth.  Of  aU  suits  and  proceedings  arising  under  any  law 
regulating  commerce,  except  those  suits  and  proceedings  exclusive 
jurisdiction  of  which  has  been  conferred  upon  the  commerce  court. 

Ninth.  Of  all  suits  and  proceedings  for  the  enforcement  of 
penalties  and  forfeitures  incurred  under  any  law  of  the  United 
States. 

Tenth.  Of  all  suits  by  the  assignee  of  any  debenture  for  draw- 
back of  duties,  issued  under  any  law  for  the  collection  of  duties,' 
against  the  person  to  whom  such  debenture  was  originally  granted,! 
or  against  any  indorser  thereof,  to  recover  the  amount  of  such 
debenture. 

Eleventh.  Of  all  suits  brought  by  any  person  to  recover  dam- 
ages for  any  injury  to  his  person  or  property  on  account  of  any 
act  done  by  him,  under  any  law  of  the  United  States,  for  the 
protection  or  collection  of  any  of  the  revenues  thereof,  or  to  enforce 
the  right  of  citizens  of  the  United  States  to  vote  in  the  several 
states. 

Twelfth.  Of  all  suits  authorized  by  law  to  be  brought  by  any 
person  for  the  recovery  of  damages  on  account  of  any  injury  to 
his  person  or  property,  or  of  the  deprivation  of  any  right  or  priv- 
ilege of  a  citizen  of  the  United  States,  by  any  act  done  in  further- 
ance of  any  conspiracy  mentioned  in  section  1980,  Revised  Statutes. 

Tirnjcciith.  Of  all  suits  authorized  by  law  to  be  brought  against 
any  jxtsoii  who,  luiviiig  knowledge  that  any  of  the  wrongs  men- 


The  Judicial  Code  455 

tioned  in  section  1980,  Revised  Statutes,  are  about  to  be  done,  and, 
having  power  to  prevent  or  aid  in  preventing  the  same,  neglects 
or  refuses  so  to  do,  to  recover  damages  for  any  such  wrongful  act. 

Fourteenth.  Of  all  suits  at  law  or  in  equity  authorized  by  law 
to  be  brougiit  by  any  person  to  redress  the  deprivation,  under  color 
of  any  law,  statute,  ordinance,  regulation,  custom,  or  usage  of  any 
state,  of  any  right,  privilege,  or  immunity,  secured  by  the  Con- 
stitution of  the  United  States,  or  of  any  right  secured  by  any  law 
of  the  United  States,  providing  for  equal  rights  of  citizens  of  the 
United  States,  or  of  all  persons  within  the  jurisdiction  of  the 
United  States. 

Fifteenth.  Of  all  suits  to  recover  possession  of  any  office,  except 
that  of  elector  of  President  or  Vice  President,  Representative  in 
or  Delegate  to  Congress,  or  member  of  a  state  legislature,  authorized 
b}^  law  to  be  brought,  wherein  it  appears  that  the  sole  question 
touching  the  title  to  such  office  arises  out  of  the  denial  of  the  right 
to  vote  to  any  citizen  offering  to  vote,  on  account  of  race,  color,  or 
previous  condition  of  servitude:  Provided,  That  such  jurisdiction 
shall  extend  only  so  far  as  to  determine  the  rights  of  the  parties 
to  such  office  by  reason  of  the  denial  of  the  right  guaranteed  by 
the  Constitution  of  the  United  States,  and  secured  by  any  law,  to 
enforce  the  right  of  citizens  of  the  United  States  to  vote  in  all  the 
states. 

Sixteenth.  Of  all  cases  commenced  by  the  United  States,  or  by 
direction  of  any  officer  thereof,  against  any  national  banking 
association,  and  cases  for  winding  up  the  affairs  of  any  such  bank ; 
.and  of  all  suits  brought  by  any  banking  association  established  in 
the  district  for  which  the  court  is  held,  under  the  provisions  of 
title  "  National  Banks,"  Revised  Statutes,  to  enjoin  the  comp- 
troller of  the  currency,  or  any  receiver  acting  under  his  direction, 
as  provided  by  said  title.  And  all  national  banking  associations 
established  under  the  laws  of  the  United  States  shall,  for  the  pur- 
poses of  all  other  actions  by  or  against  them,  real,  personal,  or 
mixed,  and  all  suits  in  equity,  be  deemed  citizens  of  the  states  in 
which  they  are  respectively  located. 

Seventeenth.  Of  all  suits  brought  by  any  alien  for  a  tort  only, 
in  violation  of  the  laws  of  nations  or  of  a  treaty  of  the  United 

States. 


456  Appendix 

Eighteenth.     Of  all  suits  against  consuls  and  vice  consuls. 

Nineteenth.     Of  all  matters  and  proceedings  in  bankruptcy. 

Twentieth.  Concurrent  with  the  court  of  claims,  of  all  claims 
not  exceeding  ten  thousand  dollars  founded  upon  the  Constitution 
of  the  United  States  or  any  law  of  Congress,  or  upon  any  regula- 
tion of  an  executive  department,  or  upon  any  contract,  express  or 
implied,  with  the  Government  of  the  United  States,  or  for  damages, 
liquidated  or  unliquidated,  in  eases  not  sounding  in  tort,  in  respect 
to  which  claims  the  party  would  be  entitled  to  redress  against  the 
United  States,  either  in  a  court  of  law,  equity,  or  admiralty,  if  the 
United  States  were  suable,  and  of  all  set-offs,  counterclaims,  claims 
for  damages,  whether  liquidated  or  unliquidated,  or  other  demands 
whatsoever  on  the  part  of  the  Government  of  the  United  States 
against  any  claimant  against  the  Government  in  said  court: 
Provided,  however,  That  nothing  in  this  paragraph  shall  be  con- 
strued as  giving  to  either  the  district  courts  or  the  court  of  claims 
jurisdiction  to  hear  and  determine  claims  growing  out  of  the  late 
Civil  War,  and  commonly  known  as  "war  claims,"  or  to  hear  and 
determine  other  claims  which  had  been  rejected  or  reported  on 
adversely  prior  to  the  third  day  of  March,  eighteen  hundred  and 
eighty-seven,  by  any  court,  department,  or  commission  authorized 
to  hear  and  determine  the  same,  or  to  hear  and  determine  claims 
for  pensions;  or  as  giving  to  the  district  courts  jurisdiction  of  cases 
brought  to  recover  fees,  salary,  or  compensation  for  official  services 
of  officers  of  the  United  States  or  brought 'for  such  purpose  by 
persons  claiming  as  such  officers  or  as  assignees  or  legal  representa- 
tives thereof;  but  no  suit  pending  on  the  twenty-seventh  day  of 
June,  eighteen  hundred  and  ninety-eight,  shall  abate  or  be  affected 
by  this  provision :  And  provided  further,  That  no  suit  against  the 
Government  of  the  United  States  shall  be  allowed  under  this  para- 
graph unless  the  same  shall  have  been  brought  within  six  years 
after  the  right  accrued  for  which  the  claim  is  made:  Provided, 
That  the  claims  of  married  women,  first  accrued  during  marriage, 
of  persons  under  the  age  of  twenty-one  years,  first  accrued  during 
minority,  and  of  idiots,  lunatics,  insane  persons,  and  persons  be- 
yond the  seas  at  the  time  the  claim  accrued,  entitled  to  the  claim, 
shall  not  be  barred  if  the  suit  be  brought  within  three  years  after 
the  disability  has  ceased;  but  no  olhor  disability  than  those  enu- 
merated shall  prevent  any  claim  fi-om  being  barred,  nor  shall  any 
of  the  said  disabilities  operate  curmiliitivcly.    All  suits  bi'ouglit  and 


The  Judicial  Code  457 

tried  under  the  provisions  of  this  paragraph  shall  be  tried  by  the 
court  without  a  jury. 

Twenty-first.  Of  proceedings  in  equity,  by  writ  of  injunction, 
to  retrain  violations  of  the  provisions  of  laws  of  the  United  States 
to  prevent  the  unlawful  inclosure  of  public  lands ;  and  it  shall  be 
sufficient  to  give  the  court  jurisdiction  if  service  of  original  process 
be  had  in  any  civil  proceeding  on  any  agent  or  employee  having 
charge  or  control  of  the  inclosure. 

Twenty-second.  Of  all  suits  and  proceedings  arising  under  any 
law  regulating  the  immigration  of  aliens,  or  under  the  contract 
labor  laws. 

Twenty-third.  Of  all  suits  and  proceedings  arising  under 
any  law  to  protect  trade  and  commerce  against  restraints  and 
monopolies. 

Twenty-fourth.  Of  all  actions,  suits,  or  proceedings  involving 
the  right  of  any  person,  in  whole  or  in  part  of  Indian  blood  or 
descent,  to  any  allotment  of  land  under  any  law  or  treaty.  And 
the  judgment  or  decree  of  any  such  court  in  favor  of  any  claimant 
to  an  allotment  of  land  shall  have  the  same  effect,  when  properly 
certified  to  the  Secretary  of  the  Interior,  as  if  such  allotment  had 
been  allowed  and  approved  by  him ;  but  this  provision  shall  not 
apply  to  any  lands  now  or  heretofore  held  by  either  of  the  Five 
Civilized  Tribes,  the  Osage  Nation  of  Indians,  nor  to  any  of  the 
lands  within  the  Quapaw  Indian  Agency :  Provided,  That  the 
right  of  appeal  shall  be  allowed  to  either  party  as  in  other  cases. 

Amended  by  the  Act  of  Dec.  21,  1911,  c.  5  (37  Stat.  L.  46). 

Twenty-fifth.  Of  suits  in  equity  brought  by  any  tenant  in  com- 
mon or  joint  tenant  for  the  partition  of  lands  in  cases  where  the 
United  States  is  one  of  such  tenants  in  common  or  joint  tenants, 
such  suits  to  be  brought  in  the  district  in  which  such  land  is  situate. 

§  25.  The  district  courts  shall  have  appellate  jurisdiction  of  the 
judgments  and  orders  of  United  States  commissioners  in  cases 
arising  under  the  Chinese  exclusion  laws. 

§26.  The  district  court  for  the  district  of  Wyoming  shall  have 
jurisdiction   of  all   felonies   committed   within   the   Yellowstone 


458  Appendix 

National  Park  and  appellate  jurisdiction  of  judgments  in  cases  of 
conviction  before  the  commissioner  authorized  to  be  appointed 
under  section  five  of  an  Act  entitled  "An  Act  to  protect  the  birds 
and  animals  in  Yellowstone  National  Park,  and  to  punish  crimes 
in  said  park,  and  for  other  purposes,"  approved  May  seventh, 
eighteen  hundred  and  ninety-four, 

§  27.  The  district  court  of  the  United  States  for  the  district  of 
South  Dakota  shall  have  jurisdiction  to  hear,  try,  and  determine 
all  actions  and  proceedings  in  which  any  person  shall  be  charged 
with  the  crime  of  murder,  manslaughter,  rape,  assault  with  intent 
to  kill,  arson,  burglary,  larceny,  or  assault  with  ar  dangerous 
weapon,  committed  within  the  limits  of  any  Indian  reservation  in 
the  State  of  South  Dakota. 


CHAPTER  III 

DISTRICT  COUETS— REMOVAL  OF  CAUSES 

§  28.  Removal  of  suits  from  State  to  United  States  district  courts. 

§  29.  Procedure  for  removal. 

§  30.  Suits  under  grants  of  land  from  different  states. 

§  31.  Removal  of  causes  against  persons  denied  any  civil  rights,  etc. 

I  32.  When  petitioner  is  in  actual  custody  of  state  court. 

§  33.  Suits  and  prosecutions  against  revenue  officers,  etc. 

§  34.  Removal  of  suits  by  aliens. 

§  35.  When  copies  of  record  are  refused  l)y  clerk  of  state  court. 

§  36.  Previous  attachment  bonds,  orders,  etc.,  remain  valid. 

§  37.  Suits  improperly  in  district  court  may  be  dismissed  or  remanded. 

§  38.  Proceedings  in  suits  removed. 

§  39.  Time  for  filing  record — Return  of  record,  hovp  enforced. 

§  28.  Any  suit  of  a  civil  nature,  at  law  or  in  equity,  arising  un- 
der the  Constitution  or  laws  of  the  United  States,  or  treaties  made, 
or  which  shall  be  made,  under  their  authority,  of  which  the  district 
courts  of  the  United  States  are  given  original  jurisdiction  by  this 
title,  which  may  now  be  pending  or  which  may  hereafter  be 
brought,  in  any  .state  court,  may  be  removed  by  the  defendant  or 
defendants  therein  to  the  district  court  of  the  United  States  for 
the  proper  district.  Any  other  suit  of  a  civil  nature,  at  law  or  in 
equity,  of  which  tlie  district  courts  of  the  Uuitcd  States  are  given 
jurisdiction  hy  this  title,  and  which  are  now  ponding  or  which  may 
Jicroarici-  he  hi-ou^'hl,  in  iiny  state  court,  nuiy  be  removed  into  the 


The  Judicial  Code  459 

district  court  of  the  United  States  for  the  proper  district  by  the 
defendant  or  defendants  therein,  being  nonresidents  of  that  state. 
And  when  in  any  suit  mentioned  in  this  section  there  shall  be  a 
controversy  whieh  is  wholly  between  citizens  of  different  states, 
and  M'hich  can  be  fully  determined  as  between  them,  then  either 
one  or  more  of  the  defendants  actually  interested  in  such  con- 
troversy may  remove  said  suit  into  the  district  coiirt  of  the  United 
States  for  the  proper  district.  And  where  a  suit  is  now  pending, 
or  may  hereafter  be  brought,  in  any  state  court,  in  which  there  is 
a  controversy  between  a  citizen  of  the  state  in  which  the  suit  is 
brought  and  a  citizen  of  another  state,  any  defendant,  being  such 
citizen  of  another  state,  may  remove  such  suit  into  the  district  court 
of  the  United  States  for  the  proper  district,  at  any  time  before  the 
trial  thereof,  when  it  shall  be  made  to  appear  to  said  district  court 
that  from  prejudice  or  local  influence  he  will  not  be  able  to  obtain 
justice  in  such  state  court,  or  in  any  other  state  court  to  which  the 
said  defendant  may,  under  the  laws  of  the  state,  have  the  right, 
on  account  of  such  prejudice  or  local  influence,  to  remove  said 
cause:  Provided,  That  if  it  further  appear  that  said  suit  can  be 
fully  and  justly  determined  as  to  the  other  defendants  in  the  state 
court,  without  being  affected  by  such  prejudice  or  local  influence, 
and  that  no  party  to  the  suit  will  be  prejudiced  by  a  separation  of 
the  parties,  said  district  court  may  direct  the  suit  to  be  remanded, 
so  far  as  relates  to  such  other  defendants,  to  the  state  court,  to  be 
proceeded  with  therein.  At  any  time  before  the  trial  of  any  suit 
which  is  now  pending  in  any  district  court,  or  may  hereafter  be 
entered  therein,  and  which  has  been  removed  to  said  court  from  a 
state  court  on  the  affidavit  of  any  party  plaintiff  that  he  had  reason 
to  believe  and  did  believe  that,  from  prejudice  or  local  influence, 
he  was  unable  to  obtain  justice  in  said  state  court,  the  district  court 
shall,  en  application  of  the  other  party,  examine  into  the  truth  of 
said  affidavit  and  the  grounds  thereof,  and,  unless  it  shall  appear 
to  the  satisfaction  of  said  court  that  said  party  will  not  be  able 
to  obtain  justice  in  said  state  court,  it  shall  cause  the  same  to  be 
remanded  thereto.  "Whenever  any  cause  shall  be  removed  from  any 
state  court  into  any  district  court  of  the  United  States,  and  the 
district  court  shall  decide  that  the  cause  was  improperly  removed, 
and  order  the  same  to  be  remanded  to  the  state  court  from  whence 
it  came,  such  remand  shall  be  immediately  carried  into  execution, 
and  no  appeal  or  writ  of  error  from  the  decision  of  the  district 
court  so  remanding  such  cause  shall  be  allowed:  Provided,  That 
no  case  arising  imder  an  Act  entitled  "An  Act  relating  to  the 


460  Appendix 

liability  of  common  carriers  by  railroad  to  their  employees  in  cer- 
tain cases,"  approved  April  twenty-second,  nineteen  hundred  and 
eight,  or  any  amendment  thereto,  and  brought  in  any  state  court 
of  competent  jurisdiction  shall  be  removed  to  any  court  of  the 
United  States.  And  provided  further,  That  no  suit  brought  in  any 
state  court  of  competent  jurisdiction  against  a  railroad  company, 
or  other  corporation,  or  person,  engaged  in  and  carrying  on  the 
business  of  a  common  carrier,  to  recover  damages  for  delay,  loss 
of  or  injury  to  property  received  for  transportation  by  such  com- 
mon carrier  under  section  twenty  of  the  Act  to  regulate  commerce, 
approved  February  fourth,  eighteen  hundred  and  eighty-seven,  as 
amended  June  twenty-ninth,  nineteen  hundred  and  six,  April 
thirteenth,  nineteen  hundred  and  eight,  Februarj^  twenty-fifth, 
nineteea  hundred  and  nine,  and  June  eighteenth,  nineteen  hundred 
and  ten,  shall  be  removed  to  any  court  of  the  United  States  where 
the  matter  in  controversy  does  not  exceed,  exclusive  of  interest  and 
costs,  the  sum  or  value  of  $3,000. 

Amended  by  Act  of  January  20,  1914,  e.  11   (38  Stat.  L.  278). 

§  29.  Whenever  any  party  entitled  to  remove  any  suit  men- 
tioned in  the  last  preceding  section,  except  suits  removable  on  the 
ground  of  prejudice  or  local  influence,  may  desire  to  remove  such 
suit  from  a  state  court  to  the  district  court  of  the  United  States, 
he  may  make  and  file  a  petition,  duly  verified,  in  such  suit  in  such 
state  court  at  the  time,  or  any  time  before  the  defendant  is  required 
by  the  laws  of  the  state  or  the  rule  of  the  state  court  in  which  such 
suit  is  brought  to  answer  or  plead  to  the  declaration  or  complaint 
of  the  plaintiff,  for  the  removal  of  such  suit  into  the  district  court 
to  be  held  in  the  district  where  such  suit  is  pending,  and  shall  make 
and  file  therewith  a  bond,  with  good  and  sufficient  surety,  for  his 
or  their  entering  in  such  district  court,  within  thirty  days  from  the 
date  of  filing  said  petition,  a  certified  copy  of  the  record  in  such 
suit,  and  for  paying  all  costs  that  may  be  awarded  by  the  said 
district  court  if  said  district  court  shall  hold  that  such  suit  was 
wrongfully  or  improperly  removed  thereto,  and  also  for  their  ap- 
pearing and  entering  special  bail  in  such  suit  if  special  bail  was 
originally  i-equisile  therein.  It  shall  then  be  the  duty  of  the  state 
court  to  accei)t  said  petition  and  boiul  and  ])rocecd  no  further  in 
such  suit.  "Written  notice  of  said  i)ctition  and  bond  for  removal 
shall  be  given  the  adverse  party  or  parties  prior  to  filing  the  same. 
The  said  copy  being  entered  within  said  thirty  days  as  aforesaid  in 
said  district  court  of  the  United  States,  the  parties  so  removing  the 


The  Judicial  Code  461 

said  cause  shall,  within  thirty  days  thereafter,  plead,  answer,  or 
demur  to  the  declaration  or  complaint  in  said  cause,  and  the  cause 
shall  then  proceed  in  the  same  manner  as  if  it  had  been  originally 
commenced  in  the  said  district  court. 

§  30.  If  in  any  action  commenced  in  a  state  court  the  title  of 
land  be  concerned,  and  the  parties  arc  citizens  of  the  same  state 
and  the  matter  in  dispute  exceeds  the  .sum  oi-  value  of  three  thou- 
sand dollars,  exclusive  of  interest  and  costs,  the  sum  or  value  being 
made  to  appear,  one  or  more  of  the  plaintiffs  or  defendants,  before 
the  trial,  may  state  to  the  state  court,  and  make  affidavit  if  the 
court  require  it,  that  he  or  they  claim,  and  shall  rely  upon,  a  right 
or  title  to  the  land  under  a  grant  from  a  state,  and  produce  the 
original  grant,  or  an  exemplification  of  it,  except  where  the  loss  of 
public  records  shall  put  it  out  of  his  or  their  power,  and  shall  move 
that  any  one  or  more  of  the  adverse  party  inform  the  court  whether 
he  or  they  claim  a  right  or  title  to  the  land  under  a  grant  from 
some  other  state,  the  party  or  parties  so  required  shall  give  such 
information,  or  otherwise  not  be  allowed  to  plead  such  grant  or 
give  it  in  evidence  upon  the  trial.  If  he  or  they  inform  the  court 
that  he  or  they  do  claim  under  such  grant,  any  one  or  more  of  the 
party  moving  for  such  information  may  then,  on  petition  and  bond, 
as  hereinbefore  mentioned  in  this  chapter,  remove  the  cause  for 
trial  to  the  district  court  of  the  United  States  next  to  be  holden  in 
such  district ;  and  any  one  of  either  party  removing  the  cause  shall 
not  be  allowed  to  plead  or  give  evidence  of  any  other  title  than  that 
by  him  or  them  stated  as  aforesaid  as  the  ground  of  his  or  their 
claim. 

§31.  When  any  civil  suit  or  criminal  prosecution  is  com- 
menced in  any  state  court,  for  any  cause  whatsoever,  against  any 
person  who  is  denied  or  can  not  enforce  in  the  judicial  tribunals 
of  the  state,  or  in  the  part  of  the  state  where  such  suit  or  prosecu- 
tion is  pending,  any  right  secured  to  him  by  any  law  providing  for 
the  equal  civil  rights  of  citizens  of  the  United  States,  or  of  all  per- 
sons within  the  jurisdiction  of  the  United  States,  or  against  any 
officer,  civil  or  military,  or  other  person,  for  any  arrest  or  im- 
prisonment or  other  trespasses  or  wrongs  made  or  committed  by 
virtue  of  or  under  color  of  authority  derived  from  any  law  pro- 
viding for  equal  rights  as  aforesaid,  or  for  refusing  to  do  any  act 
on  the  ground  that  it  would  be  inconsistent  with  such  law,  such 
suit  or  prosecution  may,  upon  the  petition  of  such  defendant,  filed 


462  Appendix 

in  said  state  court  at  any  time  before  the  trial  or  final  hearing  of 
the  cause,  stating  the  facts  and  verified  by  oath,  be  removed  for 
trial  into  the  next  district  court  to  be  held  in  the  district  where  it 
is  pending.  Upon  the  filing  of  such  petition  all  further  proceedings 
in  the  state  courts  shall  cease,  and  shall  not  be  resumed  except  as 
hereinafter  provided.  But  all  bail  and  other  security  given  in  such 
suit  or  prosecution  shall  continue  in  like  force  and  effect  as  if  the 
same  had  proceeded  to  final  judgment  and  execution  in  the  state 
court.  It  shall  be  the  duty  of  the  clerk  of  the  state  court  to  furnish 
such  defendant,  petitioning  for  a  removal,  copies  of  said  process 
against  him,  and  of  all  pleadings,  depositions,  testimony,  and  other 
proceedings  in  the  case.  If  such  copies  are  filed  by  said  petitioner 
in  the  district  court  on  the  first  day  of  its  session,  the  cause  shall 
proceed  therein  in  the  same  manner  as  if  it  had  been  brought  there 
by  original  process;  and  if  the  said  clerk  refuses  or  neglects  to 
furnish  such  copies,  the  petitioner  may  thereupon  docket  the  case 
in  the  district  court,  and  the  said  court  shall  then  have  jurisdiction 
therein,  and  may,  upon  proof  of  such  refusal  or  neglect  of  said 
clerk,  and  upon  reasonable  notice  to  the  plaintiff,  require  the 
plaintiff  to  file  a  declaration,  petition,  or  complaint  in  the  cause ; 
and,  in  case  of  his  default,  may  order  a  nonsuit  and  dismiss  the 
case  at  the  costs  of  the  plaintiff',  and  such  dismissal  shall  be  a^  bar 
to  any  further  suit  touching  the  matter  in  controversy.  But  if, 
without  such  refusal  or  neglect  of  said  clerk  to  furnish  such  copies 
and  proof  thereof,  the  petitioner  for  removal  fails  to  file  copies  in 
the  district  court,  as  herein  provided,  a  certificate,  under  the  seal 
of  the  district  court,  stating  such  failure,  shall  be  given,  and  upon 
the  production  thereof  in  said  state  court  the  cause  shall  proceed 
therein  as  if  no  petition  for  removal  had  been  filed. 

§  32.  "When  all  the  acts  necessary  for  the  removal  of  any  suit 
or  prosecution,  as  provided  in  the  preceding  section,  have  been 
performed,  and  the  defendant  petitioning  for  such  removal  is  in 
actual  custody  on  process  issued  by  said  State  court,  it  shall  be  the 
duty  of  the  clerk  of  said  district  court  to  issue  a  writ  of  habeas 
corpus  ciun  causa,  and  of  the  marslial,  by  virtue  of  said  writ,  to 
take  the  body  of  the  defendant  into  his  custody,  to  be  dealt  with 
in  said  district  court  according  to  law  and  the  ofders  of  said  court, 
or,  in  vacation,  of  any  judge  thereof;  and  the  marshal  shall  file 
with  or  deliver  to  the  clerk  of  said  State  court  a  duplicate  copy 
of  said  writ. 


The  Judicial  Code  463 

§  33.  When  any  civil  suit  or  criminal  prosecution  is  commenced 
in  any  court  of  a  State  against  any  officer  appointed  under  or  act- 
ing by  authority  of  any  revenue  law  of  the  United  States  now  or 
hereafter  enacted,  or  against  any  person  acting  under  or  by 
authority  of  any  revenue  law  of  the  United  States  now  or  hereafter 
enacted,  or  against  any  person  acting  under  or  by  authority  of  any 
such  officer,  on  account  of  any  act  done  under  color  of  his  office  or 
of  any  such  law,  or  on  account  of  any  right,  title,  or  authority 
claimed  by  such  officer  or  other  person  under  any  such  law,  or  is 
commenced  against  any  person  holding  property  or  estate  by  title 
derived  from  any  such  officer  and  affects  the  validity  of  any  such 
revenue  law,  or  against  any  officer  of  the  courts  of  the  United 
States  for  or  on  account  of  any  act  done  under  color  of  his  office  or 
in  the  performance  of  his  duties  as  such  officer,  or  when  any  civil 
suit  or  criminal  prosecution  is  commenced  against  any  person  for 
or  on  account  of  anything  done  by  him  while  an  officer  of  either 
House  of  Congress  in  the  discharge  of  his  official  duty  in  executing 
any  order  of  such  House,  the  said  suit  or  prosecution  may  at  any 
time  before  the  trial  or  final  hearing  thereof,  be  removed  for  trial 
into  the  district  court  next  to  be  holden  in  the  district  where  the 
same  is  pending  upon  the  petition  of  such  defendant  to  said  district 
court  and  in  the  following  manner:  Said  petition  shall  set  forth 
the  nature  of  the  suit  or  prosecution  and  be  verified  by  affidavit 
and,  together  with  a  certificate  signed  by  an  attorney  or  counselor 
at  law  of  some  court  of  record  of  the  State  where  such  suit  or 
prosecution  is  commenced  or  of  the  United  States  stating  that,  as 
counsel  for  the  petitioner,  he  has  examined  the  proceedings  against 
him  and  carefully  inquired  into  all  the  matters  set  forth  in  the 
petition,  and  that  he  believes  them  to  be  true,  shall  be  presented  to 
the  said  district  court,  if  in  session,  or  if  it  be  not,  to  the  clerk 
thereof  at  his  office,  and  shall  be  filed  in  said  office.  The  cause 
shall  thereupon  be  entered  on  the  docket  of  the  district  court  and 
shall  proceed  as  a  cause  originally  commenced  in  that  court;  but 
all  bail  and  other  security  given  upon  such  suit  or  prosecution  shall 
continue  in  like  force  and  effect  as  if  the  same  had  proceeded  to 
final  judgment  and  execution  in  the  State  court.  When  the  suit 
is  commenced  in  the  State  court  by  summons,  subpoena,  petition, 
or  any  other  process  except  capias,  the  clerk  of  the  district  court 
sliall  issue  a  writ  of  certiorari  to  the  State  court  requiring  it  to 
send  to  the  district  court  the  record  and  the  proceedings  in  the 
cause.  When  it  is  commenced  by  capias  or  by  any  other  similar 
form  of  proceeding  by  which  a  personal  arrest  is  ordered,  he  shall 


464  Appendix 

issue  a  writ  of  habeas  corpus  cum  causa,  a  duplicate  of  which  shall 
be  delivered  to  the  clerk  of  the  State  court  or  left  at  his  office  by 
the  marshal  of  the  district  or  his  deputy  or  by  some  other  person 
duly  authorized  thereto ;  and  thereupon  it  shall  be  the  duty  of  the 
State  court  to  stay  all  further  proceedings  in  the  cause,  and  the 
suit  or  prosecution,  upon  delivery  of  such  process,  or  leaving  the 
same  as  aforesaid,  shall  be  held  to  be  removed  to  the  district  court, 
and  any  further  proceedings,  trial,  or  judgment  therein  in  the 
State  court  shall  be  void.  If  the  defendant  in  the  suit  or  prosecu- 
tion be  in  actual  custody  on  mesne  process  therein,  it  shall  be  the 
duty  of  the  marshal,  by  virtue  of  the  writ  of  habeas  corpus  cum 
causa,  to  take  the  body  of  the  defendant  into  his  custody,  to  be 
dealt  with  in  the  cause  according  to  law  and  the  order  of  the 
district  court,  or,  in  vacation,  of  any  judge  thereof;  and  if,  upon 
the  removal  of  such  suit  or  prosecution,  it  is  made  to  appear  to  the 
district  court  that  no  copy  of  the  record  and  proceedings  therein 
in  the  State  court  can  be  obtained,  the  district  court  may  allow 
and  require  the  plaintiff  to  proceed  de  novo  and  to  file  a  declaration 
of  his  cause  of  action,  and  the  parties  may  thereupon  proceed  as 
in  actions  originally  brought  in  said  district  court.  On  failure  of 
the  plaintiff  so  to  proceed,  judgment  of  non  prosequitur  may  be 
rendered  against  him,  with  costs  for  the  defendant. 
Amended  by  the  Act  of  Aug.  23,  1916,  e.  399  (39  Stat.  L.  532). 

§  34.  Whenever  a  personal  action  has  been  or  shall  be  brought 
in  any  state  court  by  an  alien  against  any  citizen  of  a  state  who  is, 
or  at  the  time  the  alleged  action  accrued  was,  a  civil  officer  of  the 
Tnited  States,  being  a  nonresident  of  that  state  wherein  jurisdic- 
tion is  obtained  by  the  state  court,  by  personal  service  of  process, 
such  action  may  be  removed  into  the  district  court  of  the  United 
States  in  and  for  the  district  in  Avhich  the  defendant  shall  have 
been  served  with  the  process,  in  the  same  manner  as  now  provided 
for  the  removal  of  an  action  brought  in  a  state  court  by  the  provi- 
sions of  the  preceding  section. 

§  36.  In  any  case  where  a  party  is  entitled  to  copies  of  the  rec- 
ords and  proceedings  in  any  suit  or  prosecution  in  a  state  court, 
to  be  used  in  any  court  of  the  United  States,  if  the  clerk  of  said 
state  court,  upon  demand,  and  the  payment  or  tender  of  the  legal 
fees,  refuses  or  neglects  to  deliver  to  him  eerlified  copies  of  such 
records  and  procoedings,  the  court  of  the  United  States  in  which 
such  records  <iud  proceedings  are  needed  may,  on  proof  by  affidavit 


The  Judicul  Code  465 

that  the  clerk  of  said  state  court  has  refused  or  neglected  to  deliver 
copies  thereof,  on  demand  as  aforesaid,  direct  such  record  to  be 
supplied  by  affidavit  or  otherwise,  as  the  circumstances  of  the  case 
may  require  and  allow ;  and  thereupon  such  proceeding,  trial,  and 
judgment  may  be  had  in  the  said  court  of  the  United  States,  and 
all  such  processes  awarded,  as  if  certified  copies  of  such  records 
and  proceedings  had  been  regularly  before  the  said  court. 

§  36.  When  any  suit  shall  be  removed  from  a  state  court  to  a 
district  court  of  the  United  States,  any  attachment  or  sequestration 
of  the  goods  or  estate  of  the  defendant  had  in  such  suit  in  the  state 
court  shall  hold  the  goods  or  estate  so  attached  or  sequestered  to 
answer  the  final  judgment  or  decree  in  the  same  manner  as  by  law 
they  would  have  been  held  to  answer  final  judgment  or  decree  had 
it  been  rendered  by  the  court  in  which  said  suit  was  commenced. 
All  bonds,  undertakings,  or  security  given  by  either  party  in  such 
suit  prior  to  its  removal  shall  remain  valid  and  effectual  notwith- 
standing said  removal ;  and  all  injunctions,  orders,  and  other  pro- 
ceedings had  in  such  suit  prior  to  its  removal  shall  remain  in  full 
force  and  effect  until  dissolved  or  modified  by  the  court  to  which 
such  suit  shall  be  removed. 

§  37.  If  in  any  suit  commenced  in  a  district  court,  or  removed 
from  a  state  court  to  a  district  court  of  the  United  States,  it  shall 
appear  to  the  satisfaction  of  the  said  district  court,  at  any  time 
after  such  suit  has  been  brought  or  removed  thereto,  that  such  suit 
does  not  really  and  substantially  involve  a  dispute  or  controversy 
properly  within  the  jurisdiction  of  said  district  court,  or  that  the 
parties  to  said  suit  have  been  improperly  or  collusively  made  or 
joined,  either  as  plaintiffs,  or  defendants,  for  the  pui-pose  of  creat- 
ing a  case  cognizable  or  removable  under  this  chapter,  the  said 
district  court  shall  proceed  no  further  therein,  but  shall  dismiss 
the  suit  or  remand  it  to  the  court  from  which  it  was  removed,  as 
justice  may  require,  and  shall  make  such  order  as  to  costs  as  shall 
be  just. 

§  38.  The  district  court  of  the  United  States  shall,  in  all  suits 
removed  under  the  provisions  of  this  chapter,  proceed  therein  as 
if  the  suit  had  been  originally  commenced  in  said  district  court, 
and  the  same  proceedings  had  been  taken  in  such  suit  in  said  dis- 
trict court  as  shall  have  been  had  therein  in  said  state  court  prior 
to  its  removal. 

Wheaton  C.  F.  P.— 30 


466  Appendix 

§  39.  In  all  causes  removable  under  this  chapter,  if  the  clerk  of 
the  state  court  in  which  any  such  cause  shall  be  pending  shall  refuse 
to  any  one  or  more  of  the  parties  or  persons  applying  to  remove 
the  same,  a  copy  of  the  record  therein,  after  tender  of  legal  fees 
for  such  copy,  said  clerk  so  offending  shall,  on  conviction  thereof 
in  the  district  court  of  the  United  States  to  which  said  action  or 
proceeding  was  removed,  be  fined  not  more  than  one  thousand 
dollars,  or  imprisoned  not  more  than  one  year,  or  both.  The  dis- 
trict court  to  which  any  cause  shall  be  removable  under  this  chapter 
shall  have  power  to  issue  a  writ  of  certiorari  to  said  state  court 
commanding  said  state  court  to  make  return  of  the  record  in  any 
such  cause  removed  as  aforesaid,  or  in  which  any  one  or  more  of 
the  plaintiffs  or  defendants  have  complied  with  the  provisions  of 
this  chapter  for  the  removal  of  the  same,  and  enforce  said  writ 
according  to  law.  If  it  shall  be  impossible  for  the  parties  or  per- 
sons removing  any  cause  under  this  chapter,  or  complying  with 
the  provisions  for  the  removal  thereof,  to  obtain  such  copy,  for 
the  reason  that  the  clerk  of  said  state  court  refuses  to  furnish  a 
copy,  on  payment  of  legal  fees,  or  for  any  other  reason,  the  district 
court  shall  make  an  order  requiring  the  prosecutor  in  any  such 
action  or  proceeding  to  enforce  forfeiture  or  recover  penalty,  as 
aforesaid,  to  file  a  copy  of  the  paper  or  proceeding  by  which  the 
same  was  commenced,  within  such  time  as  the  court  may  determine ; 
and  in  default  thereof  the  court  shall  dismiss  the  said  action  or 
proceeding;  but  if  said  order  shall  be  complied  with,  then  said 
district  court  shall  require  the  other  party  to  plead,  and  said 
action  or  proceeding  shall  proceed  to  final  judgment.  The  said 
district  court  may  make  an  order  requiring  the  parties  thereto  to 
plead  de  novo;  and  the  bond  given,  conditioned  as  aforesaid,  shall 
be  discharged  so  far  as  it  requires  copy  of  the  record  to  be  filed 
as  aforesaid. 


CHAPTER  IV 

DISTRICT  COURTS— MISCELLANEOUS   PROVISIONS 

§  40.  Capital  cases — Where  triable. 

fi  41.  Offenses  on  the  high  seas,  etc.,  where  triable. 

ii  42.  Offenses  begun  in  one  district  and  completed  in  another. 

K  43.  SuitH  for  penalties  and  forfeitures,  whore  brought. 

8  44.  Suits  for  internal-rcvonui!  taxes,  vvlicrc  brought. 

#  45.  Seizures,  where  cognizable. 


The  Judicial  Code  467 

§  46.  Capture  of  insurrectionary  property,  where  cognizable. 

§  47,  Certain   seizures   cognizable   in   any   district   into   which   the  property  is 

taken. 
§  48.  Jurisdiction  in  patent  cases. 

§  49.  Proceedings  to  enjoin  comptroller  of  the  currency. 
§  50.  When  a  part  of  several  defendants  can  not  be  served. 
§  51.  Civil  suits — Where  to  be  brought. 
§  52.  Suits  in  states  containing  more  than  one  district. 
§  53.  Districts  containing  more  than  one   division — Where  suit  to  be  brought 

— Transfer  of  criminal  cases. 
§  54.  Suits  of  a  local  nature,  where  to  be  brought. 
§  55.  When  property  lies  in  different  districts  in  same  state. 
S  56.  When  property   lies  in   different  states   in   same   circuit — Jurisdiction   of 

receiver. 
§  57.  Absent  defendants  in  suits  to  enforce  liens,  remove  clouds  on  titles,  etc. 
§  58.  Civil    causes    may    be    transferred    to    another    division    of    district    by 

agreement. 
§  59.  Upon    creation    of    new    district    or    division,    where    prosecution    to    be 

instituted  or  action  brought. 
§  60.  Creation   of  new   district,   or   transfer   of   territory   not   to   divest   lien — 

How  lien  to  be  enforced. 
S  61.  Commissioners  to  administer  oaths  to  appraisers. 

§  62.  Transfer  of  records  to  district  court  when  a  territory  becomes  a  state. 
§  63.  District  judge  shall  demand  and  compel  delivery  of  records  of  territorial 

court. 
§  64.  Jurisdiction    of    district    courts    in    cases    transferred    from    territorial 

courts. 
§  65.  Receivers  to  manage  property  according  to  state  laws. 
i?  66.  Suits  against  receiver. 

§  67.  Certain  persons  not  to  be  appointed  or  employed  as  officers  of  courts. 
§  68.  Certain  persons  not  to  be  masters  or  receivers. 

§  40.  The  trial  of  offenses  punishable  with  death  shall  be  had 
in  the  county  where  the  offense  was  committed,  where  that  can  be 
done  without  great  inconvenience. 

§  41.  The  trial  of  all  offenses  committed  upon  the  high  seas,  or 
elsewhere  out  of  the  jurisdiction  of  any  particular  state  or  district, 
shall  be  in  the  district  where  the  offender  is  found,  or  into  which 
he  is  first  brought. 

§  42.  When  any  offense  against  the  United  States  is  begun  in 
one  judicial  district  and  completed  in  another,  it  shall  be  deemed 
to  have  been  committed  in  either,  and  may  be  dealt  with,  inquired 
of,  tried,  deteimined,  and  punished  in  either  district,  in  the  same 
manner  as  if  it  had  been  actually  and  wholly  committed  therein. 


468  Appendix 

§  43.  All  pecuniary  penalties  and  forfeitures  may  be  sued  for 
and  recovered  either  in  the  district  where  they  accrue  or  in  the 
district  where  the  offender  is  found. 

§  44.  Taxes  accruing  under  any  law  providing  internal  revenue 
may  be  sued  for  and  recovered  either  in  the  district  where  the 
liability  for  such  tax  occurs  or  in  the  district  where  the  delinquent 
resides. 

§  45.  Proceedings  on  seizures  made  on  the  high  seas,  for  for- 
feiture under  any  law  of  the  United  States,  may  be  prosecuted 
in  any  district  into  which  the  property  so  seized  is  brought 
and  proceedings  instituted.  Proceedings  on  such  seizures  made 
within  any  district  shall  be  prosecuted  in  the  district  where  the 
seizure  is  made,  except  in  cases  w'here  it  is  otherwise  provided. 

§  46.  Proceedings  for  the  condemnation  of  any  property  cap- 
tured, whether  on  the  high  seas  or  elsewhere  out  of  the  limits  of 
any  judicial  district,  or  within  any  district,  on  account  of  its  being 
purchased  or  acquired,  sold  or  given,  with  intent  to  use  or  employ 
the  same,  or  to  suffer  it  to  be  used  or  employed,  in  aiding,  abetting, 
or  promoting  any  insurrection  against  the  Government  of  the 
United  States,  or  knowingly  so  used  or  employed  by  the  owner 
thereof,  or  with  his  consent,  may  be  prosecuted  in  any  district 
where  the  same  may  be  seized,  or  into  which  it  may  be  taken  and 
proceedings  first  instituted. 

§  47.  Proceedings  on  seizures  for  forfeiture  of  any  vessel  or 
cargo  entering  any  port  of  entry  which  has  been  closed  by  the 
President  in  pursuance  of  law,  or  of  goods  and  chattels  coming  from 
a  .state  or  section  declared  by  proclamation  of  the  President  to  be 
in  insurrection  into  other  parts  of  the  United  States,  or  of  any 
vessel  or  vehicle  conveying  such  property,  or  conveying  persons  to 
or  from  such  state  or  section,  or  of  any  vessel  belonging,  in  whole 
or  in  part,  to  any  inhabitant  of  such  state  or  section,  may  be  prose- 
cuted in  any  district  into  which  the  property  .so  seized  may  be  taken 
and  proceedings  instituted;  and  tlic  disti-ict  court  thereof  shall 
have  as  full  jurisdiction  over  .such  j)r(»ceedings  as  if  the  seizure  was 
max\e  in  that  district. 

§  48.  In  suits  brouglit  for  the  infringement  of  letters  patent  the 
district  courts  of  the  United  States  shall  have  jurisdiction,  in  law 


The  Judicial  Code  46IJ 

or  in  equity,  in  the  district  of  which  the  defendant  is  an  inhabitant, 
or  in  any  district  in  which  the  defendant,  whether  a  person,  part- 
nership, or  corporation,  shall  have  committed  acts  of  infringement 
and  have  a  regular  and  established  place  of  business.  If  such  suit 
is  brought  in  a  district  of  which  the  defendant  is  not  an  inhabitant, 
but  in  which  such  defendant  has  a  regular  and  established  place 
of  business,  service  of  process,  summons,  or  subpoena  upon  the 
defendant  may  be  made  by  service  upon  the  agent  or  agents  en- 
gaged in  conducting  such  business  in  the  district  in  which  suit  is 
brought. 

§  49.  All  proceedings  by  any  national  banking  association  to 
enjoin  the  comptroller  of  the  currency,  under  the  provisions  of 
any  law  relating  to  national  banking  associations,  shall  be  had  in 
the  district  where  such  association  is  located. 

§  50.  When  there  are  several  defendants  in  any  suit  at  law  or 
in  equity,  and  one  or  more  of  them  are  neither  inhabitants  of  nor 
found  within  the  district  in  which  the  suit  is  brought,  and  do  not 
voluntarily  appear,  the  court  may  entertain  jurisdiction,  and  pro- 
ceed to  the  trial  and  adjudication  of  the  suit  between  the  parties 
who  are  properly  before  it ;  but  the  judgment  or  decree  rendered 
therein  shall  not  conclude  or  prejudice  other  parties  not  regularly 
served  with  process  nor  voluntarily  appearing  to  ansAver ;  and  non- 
joinder of  parties  who  are  not  inhabitants  of  nor  found  within  the 
district,  as  aforesaid,  shall  not  constitute  matter  of  abatement  or 
objection  to  the  suit. 

§  51.  Except  as  provided  in  the  five  succeeding  sections,  no  per- 
son shall  be  arrested  in  one  district  for  trial  in  another,  in  any  civil 
action  before  a  district  court ;  and,  except  as  provided  in  the  six 
succeeding  sections,  no  civil  suit  shall  be  brought  in  any  district 
court  against  any  person  by  any  original  process  or  proceeding  in 
any  other  district  than  that  whereof  he  is  an  inhabitant ;  but 
where  the  jurisdiction  is  founded  only  on  the  fact  that  the  action 
is  between  citizens  of  different  states,  suit  shall  be  brought  only 
in  the  district  of  the  residence  of  either  the  plaintiff  or  the 
defendant. 

§  52.  "When  a  state  contains  more  than  one  district,  every  suit 
not  of  a  local  nature,  in  the  district  court  thereof,  against  a  single 
defendant,  inhabitant  of  such  state,  must  be  brought  in  the  district 


470  Appendix 

where  he  resides ;  but  if  there  are  two  or  more  defendants,  residing 
in  different  districts  of  the  state,  it  may  be  brought  in  either  dis- 
trict, and  a  duplicate  writ  may  be  issued  against  the  defendants, 
directed  to  the  marshal  of  any  other  district  in  which  any  de- 
fendant resides.  The  clerk  issuing  the  duplicate  Avrit  shall  indorse 
thereon  that  it  is  a  true  copy  of  a  writ  sued  out  of  the  court  of 
the  proper  district;  and  such  original  and  duplicate  writs,  when 
executed  and  returned  into  the  office  from  which  they  issue,  shall 
constitute  and  be  proceeded  on  as  one  suit ;  and  upon  any  judg- 
ment or  decree  rendered  therein,  execution  may  be  issued,  directed 
to  the  marshal  of  any  district  in  the  same  state. 

§  53.  "When  a  district  contains  more  than  one  division  every 
suit  not  of  a  local  nature  against  a  single  defendant  must  be 
brought  in  the  division  where  he  resides ;  but  if  there  are  two  or 
more  defendants  residing  in  different  divisions  of  the  district  it 
may  be  brought  in  either  division.  All  mesne  and  final  process 
subject  to  the  provisions  of  this  section  may  be  served  and  executed 
in  any  or  all  of  the  divisions  of  the  district,  or  if  the  state  contains 
more  than  one  district,  then  in  any  of  such  districts,  as  provided 
in  the  preceding  section.  All  prosecutions  for  crimes  or  offenses 
shall  be  had  within  the  division  of  such  districts  where  the  same 
were  committed,  unless  the  court,  or  the  judge  thereof,  upon  the 
application  of  the  defendant,  shall  order  the  cause  to  be  transferred 
for  prosecution  to  another  division  of  the  district.  When  a  transfer 
is  ordered  by  the  court  or  judge,  all  the  papers  in  the  case,  or 
certified  copies  thereof,  shall  be  transmitted  by  the  clerk,  under 
the  seal  of  the  court,  to  the  division  to  which  the  cause  is  so 
ordered  transferred ;  and  thereupon  the  cause  shall  be  proceeded 
with  in  said  division  in  the  same  manner  as  if  the  offense  had  been 
committed  tlierein.  In  all  cases  of  the  removal  of  suits  from  the 
courts  of  a  state  to  the' district  court  of  the  United  States  such 
removal  shall  be  to  the  T'^nited  States  District  Court  in  the  division 
in  which  the  county  is  situated  from  Avliich  the  removal  is  made; 
and  the  time  within  which  tlie  removal  sliall  be  perfected,  in  so 
far  as  it  refers  to  or  is  regulated  by  the  terms  of  the  United  States 
courts,  shall  be  deemed  to  refer  to  the  terms  of  the  United  States 
District  Court  in  such  division, 

§64.  In  suits  of  a  local  nature,  where  the  defendant  resides  in 
a  difTcn-nt  district,  in  the  same  state,  from  that  in  which  the  suit 


The  Judicul  Code  471 

is  brought,  the  plaintiff  may  have  original  and  final  process  against 
him,  directed  to  the  marshal  of  the  district  in  which  he  resides. 

§  55.  Any  suit  of  a  local  nature,  at  law  or  in  equity,  where  the 
land  or  other  subject-matter  of  a  fixed  character  lies  partly  in  one 
district  and  partly  in  another,  within  the  same  state,  may  be' 
brought  in  the  district  court  of  either  district;  and  the  court  in 
which  it  is  brought  shall  have  jurisdiction  to  hear  and  decide  it, 
and  to  cause  mesne  or  final  process  to  be  issued  and  executed,  as 
fully  as  if  the  said  subject-matter  were  wholly  within  the  district 
for  w^hich  such  court  is  constituted. 

§  56.  Where  in  any  suit  in  which  a  receiver  shall  be  appointed 
the  land  or  other  property  of  a  fixed  character,  the  subject  of  the 
suit,  lies  within  different  states  in  the  same  judicial  circuit,  the 
receiver  so  appointed  shall,  upon  giving  bond  as  required  by  the 
court,  immediately  be  vested  with  full  jurisdiction  and  control 
over  all  the  property,  the  subject  of  the  suit,  lying  or  being  within 
such  circuit ;  subject,  however,  to  the  disapproval  of  such  order, 
within  thirty  days  thereafter,  by  the  circuit  court  of  appeals  for 
such  circuit,  or  by  a  circuit  judge  thereof,  after  reasonable  notice 
to  adverse  parties  and  an  opportunity  to  be  heard  upon  the  motion 
for  such  disapproval ;  and  subject,  also,  to  the  filing  and  entering 
in  the  district  court  for  each  district  of  the  circuit  in  which  any 
portion  of  the  property  may  lie  or  be,  within  ten  days  thereafter, 
of  a  duly  certified  copy  of  the  bill  and  of  the  order  of  appointment. 
The  disapproval  of  such  appointment  within  such  thirty  days,  or 
the  failure  to  file  such  certified  copy  of  the  bill  and  order  of  ap- 
pointment within  ten  days,  as  herein  required,  shall  divest  such 
I'eceiver  of  jurisdiction  over  all  such  property  except  that  portion 
thereof  lying  or  being  within  the  state  in  which  the  suit  is  brought. 
In  any  case  coming  within  the  provisions  of  this  section,  in  which 
a  receiver  shall  be  appointed,  process  may  issue  and  be  executed 
within  any  district  of  the  circuit  in  the  same  manner  and  to  the 
same  extent  as  if  the  property  were  wholly  within  the  same  district ; 
but  orders  affecting  such  property  shall  be  entered  of  record  in 
each  district  in  which  the  property  affected  may  He  or  be. 

§  57.  When  in  any  suit  commenced  in  any  district  court  of  the 
United  States  to  enforce  any  legal  or  equitable  lien  upon  or  claim 
to,  or  to  remove  any  incumbrance  or  lien  or  cloud  upon  the  title 
to  real  or  personal  property  within  the  district  where  such,  suit  is 


472  Appendix 

brought,  one  or  more  of  the  defendants  therein  shall  not  be  au 
inhabitant  of  or  found  within  the  said  district,  or  shall  not  volun- 
tarily appear  thereto,  it  shall  be  lawful  for  the  court  to  make  an 
order  directing  such  absent  defendant  or  defendants  to  appear, 
plead,  ansAver  or  demur  by  a  day  certain  to  be  designated,  which 
order  shall  be  served  on  such  absent  defendant  or  defendants,  if 
practicable,  wherever  found,  and  also  upon  the  person  or  persons 
in  possession  or  charge  of  said  property,  if  any  there  be ;  or  where 
such  personal  service  upon  such  absent  defendant  or  defendants 
is  not  practicable,  such  order  shall  be  published  in  such  manner  as 
the  court  may  direct,  not  less  than  once  a  week  for  six  consecutive 
weeks.  In  case  such  absent  defendant  shall  not  appear,  plead, 
answer  or  demur  within  the  time  so  limited,  or  within  some  further 
time,  to  be  allowed  by  the  court,  in  its  discretion,  and  upon  proof 
of  the  service  or  publication  of  said  order  and  of  the  performance 
of  the  directions  contained  in  the  same,  it  shall  be  lawful  for  the 
court  to  entertain  jurisdiction,  and  proceed  to  the  hearing  and 
adjudication  of  such  suit  in  the  same  manner  as  if  such  absent 
defendant  had  been  served  with  process  within  the  said  district; 
but  said  adjudication  shall,  as  regards  said  absent  defendant  or 
defendants  without  appearance,  affect  only  the  property  Avhich 
shall  have  been  the  subject  of  the  suit  and  under  the  jurisdiction 
of  the  court  therein,  within  such  district;  and  when  a  part  of 
the  said  real  or  personal  property  against  which  such  proceedings 
shall  be  taken  shall  be  witliin  anotlier  district,  but  within  the  same 
state,  such  suit  may  be  brought  in  either  district  in  said  state: 
Provid'cd,  however,  That  any  defendant  or  defendants  not  actually 
personally  notified  as  above  provided  may,  at  any  time  within  one 
year  after  final  judgment  in  any  suit  mentioned  in  this  section, 
enter  his  appearance  in  said  suit  in  said  district  court,  and  there- 
upon the  said  court  shall  make  an  order  setting  aside  the  judg- 
ment therein  and  permitting  said  defendant  or  defendants  to  plead 
therein  on  payment  bj''  him  or  them  of  such  costs  as  the  court  shall 
deem  just ;  and  thereupon  said  suit  shall  be  proceeded  with  to  final 
judgment  according  to  law. 

§  58.  Any  civil  cause,  at  law  or  in  equity,  may,  on  written  stipu- 
lation of  the  parties  or  of  their  attoi-neys  of  record  signed  and 
filed  with  the  papers  in  the  case,  in  vacation  or  in  term,  and  on  the 
written  order  of  the  judge  signed  and  filed  in  the  case  in  vacation 
or  on  the  order  of  the  court  duly  entered  of  record  in  term,  be 
transferred  to  the  court  of  any  other  division  of  the  same  district, 


The  Judicial  Code  473 

without  regard  to  the  residence  of  the  defendants,  for  trial.  When 
a  cause  shall  be  ordered  to  be  transferred  to  a  court  in  any  other 
division,  it  shall  be  the  duty  of  the  clerk  of  the  court  from  which 
the  transfer  is  made  to  carefully  transmit  to  the  clerk  of  the  court 
to  which  the  transfer  is  made  the  entire  file  of  papers  in  the  cause 
and  all  documents  and  deposits  in  his  court  pertaining  thereto, 
together  with  a  certified  transcript  of  the  records  of  all  orders, 
interlocutory  decrees,  or  other  entries  in  the  cause;  and  he  shall 
certify,  under  the  seal  of  the  court,  that  the  papers  sent  are  all 
which  are  on  file  in  said  court  belonging  to  the  cause ;  for  the  per- 
formance of  which  duties  said  clerk  so  transmitting  and  certify- 
ing shall  receive  the  same  fees  as  are  now  allowed  by  law  for  sim- 
ilar services,  to  be  taxed  in  the  bill  of  costs,  and  regularly  collected 
with  the  other  costs  in  the  cause ;  and  such  transcript,  when  so 
certified  and  received,  shall  henceforth  constitute  a  part  of  the 
record  of  the  cause  in  the  court  to  which  the  transfer  shall  be  made. 
The  clerk  receiving  such  transcript  and  original  papers  shall  file 
the  same  and  the  case  shall  then  proceed  to  final  disposition  as 
other  cases  of  a  like  nature. 

§  59.  Whenever  any  new  district  or  division  has  been  or  shall 
be  established,  or  any  county  or  territory  has  been  or  shall  be 
transferred  from  one  district  or  division  to  another  district  or 
division,  prosecutions  for  crimes  and  offenses  committed  Avithin 
such  district,  division,  county  or  territory  prior  to  such  transfer, 
shall  be  commenced  and  proceeded  with  the  same  as  if  such  new 
district  or  division  had  not  been  created,  or  such  county  or  terri- 
tory had  not  been  transferred,  unless  the  court,  upon  the  appli- 
cation of  the  defendant,  shall  order  the  cause  to  be  removed  to 
the  new  district  or  division  for  trial.  Civil  actions  pending  at  the 
time  of  the  creation  of  any  such  district  or  division,  or  the  transfer 
of  any  such  county  or  territory,  and  arising  within  the  district  or 
division  so  created  or  the  county  or  territory  so  transfen-ed,  shall 
be  tried  in  the  district  or  division  as  it  existed  at  the  time  of  the 
institution  of  the  action,  or  in  the  district  or  division  so  created, 
or  to  which  the  county  or  territory  is  or  shall  be  so  transferred, 
as  may  be  agreed  upon  by  the  parties,  or  as  the  court  shall  direct. 
The  transfer  of  such  prosecutions  and  actions  shall  be  made  in  the 
manner  provided  in  the  section  last  preceding. 

§  60.  The  creation  of  a  new  district  or  division,  or  the  transfer 
of  any  county  or  territory  from  one  district  or  division  to  another 


474  Appendix 

district  or  division,  shall  not  affect  or  divest  any  lien  theretofore 
acquired  in  the  circuit  or  district  court  by  virtue  of  a  decree, 
judgment,  execution,  attachment,  seizure  or  otherwise,  upon  prop- 
erty situated  or  being  within  the  district  or  division  so  created, 
or  the  county  or  territory  so  transferred.  To  enforce  any  such 
lien,  the  clerk  of  the  court  in  which  the  same  is  acquired,  upon  the 
request  and  at  the  cost  of  the  party  desiring  the  same,  shall  make 
a  true  and  certified  copy  of  the  record  thereof,  which,  when  so 
made  and  certified,  and  filed  in  the  proper  court  of  the  district  or 
division  in  which  such  property  is  situated  or  shall  be,  after  such 
transfer,  shall  constitute  the  record  of  such  lien  in  such  court,  and 
shall  be  evidence  in  all  courts  and  places  equally  with  the  original 
thereof;  and  thereafter  like  proceedings  shall  be  had  thereon,  and 
with  the  same  effect,  as  though  the  cause  or  proceeding  had  been 
originally  instituted  in  such  court.  The  provisions  of  this  section 
shall  apply  not  only  in  all  cases  where  a  district  or  division  is 
created,  or  a  county  or  territory  is  transferred  by  this  or  any  future 
act,  but  also  in  all  cases  where  a  district  or  division  has  been  cre- 
ated, or  a  county  or  any  territory  has  been  transferred  by  any  law 
heretofore  enacted. 

§  61.  Any  district  judge  may  appoint  commissioners,  before 
whom  appraisers  of  vessels  or  goods  and  merchandise  seized  for 
breaches  of  any  law  of  the  United  States,  may  be  sworn ;  and  such 
oaths,  so  taken,  shall  be  as  effectual  as  if  taken  before  the  judge  in 
open  court. 

§  62.  "When  any  territory  is  admitted  as  a  state,  and  a  district 
court  is  established  therein,  all  the  records  of  the  proceedings  in 
the  several  cases  pending  in  the  highest  court  of  said  territory  at 
the  time  of  such  admission,  and  all  records  of  the  proceedings  in 
the  several  cases  in  which  judgments  or  decrees  had  been  ren- 
dered in  said  territorial  court  before  that  time,  and  from  which 
writs  of  error  could  have  been  sued  out  or  appeals  could  have 
been  taken,  or  from  which  writs  of  error  had  been  sued  out  or 
appeals  had  been  taken  and  prosecuted  to  the  supreme  court  or 
to  the  circuit  court  of  appeals,  shall  be  transferred  to  and  deposited 
in  the  district  court  for  the  said  state. 

§  63.  It  shall  be  the  duty  of  the  district  judge,  in  the  case  pro- 
vided in  the  preceding  section,  to  demand  of  the  clerk,  or  other 
person  having  possession  or  custody  of  tlie  records  therein  men- 


The  Judicial  Code  475 

tioned,  the  delivery  thereof,  to  be  deposited  in  said  district  court ; 
and  in  case  of  the  refusal  of  such  clerk  or  person  to  comply  with 
such  demand,  the  said  district  judge  shall  compel  the  delivery  of 
such  records  by  attachment  or  otherwise,  according  to  law. 

§  64.  When  any  territory  is  admitted  as  a  state,  and  a  district 
court  is  established  therein,  the  said  district  court  shall  take  cog- 
nizance of  all  cases  which  were  pending  and  undetermined  in  the 
trial  courts  of  such  territory,  from  the  judgments  or  decrees  to 
be  rendered  in  which  writs  of  error  could  have  been  sued  out  or 
appeals  taken  to  the  supreme  court  or  to  the  circuit  court  of  ap- 
peals, and  shall  proceed  to  hear  and  determine  the  same. 

§  65.  Whenever  in  any  cause  pending  in  any  court  of  the  United 
States  there  shall  be  a  receiver  or  manager  in  possession  of  any 
property,  such  receiver  or  manager  shall  manage  and  operate  such 
property  according  to  the  requirements  of  the  valid  laws  of  the 
state  in  which  such  property  shall  be  situated,  in  the  same  man- 
ner that  the  owner  or  possessor  thereof  would  be  bound  to  do  if 
in  possession  thereof.  Any  receiver  or  manager  who  shall  will- 
fully violated  any  provision  of  this  section  shall  be  fined  not  more 
than  three  thousand  dollars,  or  imprisoned  not  more  than  one 
year,  or  both. 

§  66.  Every  receiver  or  manager  of  any  property  appointed  by 
any  court  of  the  United  States  may  be  sued  in  respect  of  any  act 
or  transaction  of  his  in  carrying  on  the  business  connected  with 
such  property,  without  the  previous  leave  of  the  court  in  which 
such  receiver  or  manager  was  appointed ;  but  such  suit  shall  be 
subject  to  the  general  equity  jurisdiction  of  the  court  in  which 
such  manager  or  receiver  was  appointed  so  far  as  the  same  may  be 
necessary  to  the  ends  of  justice. 

§  67.  No  person  shall  be  appointed  to  or  employed  in  any  office 
or  duty  in  any  court  who  is  related  by  affinity  or  consanguinity 
within  the  degree  of  first  cousin  to  the  judge  of  such  court. 

§  68.  No  clerk  of  a  district  court  of  the  United  States  or  his 
deputy  shall  be  appointed  a  receiver  or  master  in  any  case,  except 
where  the  judge  of  said  court  shall  determine  that  special  reasons 
exist  therefor,  to  be  assigned  in  the  order  of  appointment. 


476 


Appendix 


CHAPTER  V 

DISTKICT    COURTS— DISTEICTS,    AND    PROVISIONS    APPLICABLE 
TO  PARTICULAR  STATES 


§ 

69. 

Judicial  districts. 

§ 

84. 

Louisiana. 

§100. 

Ohio. 

§ 

70. 

Alabama. 

§ 

85. 

Maine. 

§101. 

Oklahoma. 

§ 

00. 

Arizona. 

§ 

86. 

Maryland. 

§102. 

Oregon. 

§ 

71. 

Arkansas. 

§ 

87. 

Massachusetts. 

§  103. 

Pennsylvania. 

§ 

72. 

California. 

§ 

88. 

Michigan. 

§104. 

Rhode  Island. 

§ 

73. 

Colorado. 

§ 

89. 

Minnesota. 

§105. 

South  Carolina 

§ 

74. 

Connecticut. 

§ 

90. 

Mississippi. 

§106. 

South  Dakota. 

§ 

75. 

Delaware. 

§ 

91. 

Missouri. 

§107. 

Tennessee. 

§ 

76. 

Florida. 

§ 

92. 

Montana. 

§108. 

Texas. 

§ 

77. 

Georgia. 

§ 

93. 

Nebraska. 

§109. 

Utah. 

§ 

78. 

Idaho. 

§ 

94. 

Nevada. 

§110. 

Vermont. 

§ 

79. 

Illinois. 

§ 

95. 

New   Hampshire. 

§111. 

Virginia. 

§ 

80. 

Indiana. 

§ 

96. 

New  Jersey. 

§112. 

Washington. 

§ 

81. 

Iowa. 

§ 

97. 

New  York. 

§113. 

West  Virginia. 

§ 

82. 

Kansas. 

§ 

98. 

North  Carolina. 

§114. 

Wisconsin. 

§ 

83. 

Kentucky. 

§ 

99. 

North   Dakota. 

§  115. 

Wyoming. 

§  69.  The  United  States  are  divided  into  judicial  districts  as 
follows :  ' 


§  70.  The  state  of  Alabama  is  divided  into  three  judicial  dis- 
tricts, to  be  known  as  the  northern,  middle  and  southern  districts 
of  Alabama.  The  northern  district  shall  include  the  territory  em- 
braced on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the 
counties  of  Cullman,  Jackson,  Lawrence,  Limestone,  Madison  and 
Morgan,  which  shall  constitute  the  northeastern  division  of  said 
district;  also  the  territorj'  embraced  on  the  date  last  mentioned  in 
the  counties  of  Colbert,  Franklin  and  Lauderdale,  Mhich  shall  con- 
stitute the  northwestern  division  of  said  district;  also  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Cherokee, 
De  Kalb,  P^towah,  ]\IarshalI  and  Saint  Clair,  which  shall  consti- 
tute the  middle  division  of  said  district;  also  the  territory  em- 
braced on  the  date  last  mentioned  in  the  counties  of  Blount,  Jeffer- 
son and  Shelby,  which  shall  constitute  the  southern  division  of  said 
district ;  also  the  territoiy  embraced  on  the  date  last  mentioned  in 
the  counties  of  Walker,  Winston,  ]\Iarion,  Fayette  and  Lamar, 
which  shall  constitute  the  Jasper  division  of  said  district ;  also  the 
territory  embraced  on  the  date  last  m(>ntioned  in  the  counties  of 
Caliioun,  ('lay,  Clebuine  and  Talhide^a,  which  shall  constitute 
the  eastern  division  of  said  district;  also  the  territory  embraced 


The  Judicial  Code  477 

on  the  date  last  mentioned  in  the  counties  of  Bibb,  Greene,  Pickens, 
Sumter  and  Tuscaloosa,  which  shall  constitute  the  western  division 
of  said  district.  Terms  of  the  district  court  for  tlie  northeastern 
division  shall  be  held  at  Huntsville  on  the  first  Tuesday  in  April 
and  the  second  Tuesday  in  October ;  for  the  northwestern  division, 
at  Florence  on  the  second  Tuesday  in  February  and  the  third  Tues- 
day in  October:  Provided,  that  suitable  rooms  and  accommoda- 
tions for  holding  court  at  Florence  shall  be  furnished  free  of  ex- 
pense to  the  Government ;  for  the  middle  division,  at  Gadsden 
on  the  first  Tuesdays  in  February  and  August:  Provided,  That 
suitable  rooms  and  accommodations  for  the  holding  court  at  Gads- 
den shall  be  furnished  free  of  expense  to  the  Government ;  for  the 
southern  division,  at  Birmingham  on  the  first  Mondays  in  March 
and  September,  which  courts  shall  remain  in  session  for  the  trans- 
action of  business  at  least  six  months  in  each  calendar  year;  for 
the  Jasper  division,  at  Jasper  on  the  second  Tuesdays  in  January 
and  June:  Provided,  That  suitable  rooms  and  accommodations 
for  holding  court  at  Jasper  shall  be  furnished  free  of  expense  to 
the  Government;  for  the  eastern  division,  at  Anniston  on  the  first 
Mondays  in  May  and  November;  and  for  the  western  division,  at 
Tuscaloosa  on  the  first  Tuesday  in  January  and  June.  The  clerk 
of  the  court  for  the  northern  district  shall  maintain  an  office  in 
charge  of  himself  or  a  deputy  at  Anniston,  at  Florence,  at  Jasper 
and  at  Gadsden,  which  shall  be  kept  open  at  all  times  for  the  trans- 
action of  the  business  of  said  court.  The  district  judge  for  the 
northern  district  shall  reside  at  Birmingham.  The  middle  district 
shall  include  the  territory  embraced  on  the  first  day  of  July,  nine- 
teen hundred  and  ten,  in  the  counties  of  Autauga,  Barbour,  Bul- 
lock, Butler,  Chilton,  Coosa,  Covington,  Crenshaw,  Elmore, 
Lowndes,  Montgomery  and  Pike,  which  shall  constitute  the  north- 
ern division  of  said  district ;  also  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Coffee,  Dale,  Geneva,  Henry  and 
Houston,  which  shall  constitute  the  southern  division  of  said  dis- 
trict; also  the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Chambers,  Lee,  Macon,  Randolph,  Russell  and  Talla- 
poosa, which  shall  constitute  the  eastern  division  of  said  middle 
district.  Terms  of  the  district  court  for  the  northern  division 
shall  be  held  at  Montgomery  on  the  first  Tuesdays  in  ]\Iay  and 
December;  and  for  the  southern  division,  at  Dothan  on  the  first 
Mondays  in  June  and  December ;  and  for  the  eastern  division,  at 
Opelika  on  the  first  Mondays  in  April  and  November:  Provided, 
That  suitable  rooms  and  accommodations  for  holding   court   at 


478  Appendix 

Opelika  shall  b?  furnished  free  of  expense  to  the  Government. 
The  clerk  of  the  court  for  the  middle  district  shall  maintain  an 
office,  in  charge  of  himself  or  a  deputy  at  Dothan,  and  shall  main- 
tain an  office  in  charge  of  himself  or  a  deputy  at  Opelika,  which  said 
offices  at  Dothan  and  Opelika  shall  be  kept  open  at  all  times  for 
the  transaction  of  the  business  of  said  divisions.  The  southern  dis- 
trict shall  include  the  territory  embraced  on  the  first  day  of  July, 
nineteen  hundred  and  ten,  in  the  counties  of  Baldwin,  Choctaw, 
Clark,  Conecuh,  Escambia,  Mobile,  Monroe  and  Washington,  which 
shall  constitute  the  southern  division  of  said  district ;  also  the  ter- 
ritory embraced  on  the  date  last  mentioned  in  the  counties  of  Dal- 
las, Hale,  Marengo,  Peny  and  "Wilcox,  which  shall  constitute  the 
northern  division  of  said  district.  Terms  of  the  district  court  for 
the  southern  division  shall  be  held  at  Mobile  on  the  fourth  Mon- 
days in  May  and  November;  and  for  the  northern  division,  at 
Selma  on  the  first  ^Mondays  in  May  and  November. 
As  amended  by  Act  of  Feb.  28,  1913,  c.  89  (38  Stat.  L.  698). 

§  00.  [The  state  of  Arizona  shall  constitute  one  judicial  dis- 
trict, to  be  known  as  the  district  of  Arizona.  Terms  of  the  district 
court  shall  be  held  in  Tucson  on  the  first  Mondays  in  May  and 
November ;  at  Phoenix  on  the  first  Mondays  in  April  and  October ; 
at  Prescott  on  the  first  Mondays  in  March  and  September ;  and  at 
Globe  on  the  first  Mondays  in  June  and  December.  Causes,  civil 
and  criminal,  may  be  transferred  by  the  court  or  judge  thereof 
from  any  of  the  aforesaid  places  where  court  shall  be  held  in  said 
district  to  any  of  the  places  hereinbefore  mentioned  in  said  dis- 
trict when  the  convenience  of  the  parties  or  the  ends  of  justice 
would  be  promoted  by  the  transfer;  and  any  interlocutory  order 
may  be  made  by  the  court  or  judge  thereof  in  any  of  the  herein- 
before mentioned  places.] 

Act  of  Oct.  3,  1913,  0.  17  (38  Stat.  L.  203). 

§  71.  The  state  of  Arkansas  is  divided  into  two  districts,  to  be 
known  as  the  eastern  and  western  districts  of  Arkansas.  The  west- 
ern district  shall  include  the  territory  embraced  on  the  first  day  of 
July,  nineteen  hundred  and  ten,  in  the  counties  of  Sevier,  Howard, 
Little  River,  Pike,  Hempstead,  Miller,  Lafayette,  Columbia,  Ne- 
vada, Ouachita,  Union  and  Calhoun,  which  shall  constitute  the  Tex- 
arkana  division  of  said  district ;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Polk,  Scott,  Yell,  Logan, 
Sebastian,  Franklin,  Crawford,  W;isliington,  Ronton  and  Johnson, 
wliicli   slijill    cdtisf itutc   tlic   ]'\)i-t   Siiiilli    division   of  said   district; 


The  Judicial  Code  479 

.  also  the  territory  embraced  on  the  date  last  mentioned  in  the  coun- 
ties of  Baxter,  Boone,  Carroll,  Madison,  Marion,  Newton  and 
Searcy,  which  shall  constitute  the  Harrison  division  of  said  dis- 
trict. Terms  of  the  district  court  for  the  Texarkana  division  shall 
be  held  at  Texarkana  on  the  second  Mondays  in  May  and  Novem- 
ber; for  the  Fort  Smith  division,  at  Fort  Smith  on  the  second 
Mondays  in  January  and  June ;  and  for  the  Harrison  division, 
at  Harrison  on  the  second  Mondays  in  April  and  October.  The 
eastern  district  shall  include  the  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Lee, 
Phillips,  Saint  Francis,  Cross,  Monroe  and  Woodruff,  which  shall 
constitute  the  eastern  division  of  said  district ;  also  the  terri- 
tory embraced  on  the  date  last  mentioned  in  the  counties  of  In- 
dependence, Cleburne,  Stone,  Izard,  Sharp  and  Jackson,  which 
shall  constitute  the  northern  division  of  said  district;  also  the 
territory  embraced  on  the  date  last  mentioned  in  the  counties 
of  Crittenden,  Clay,  Craighead,  Greene,  Mississippi,  Poinsett, 
Fulton,  Randolph  and  Lawrence,  w^hich  shall  constitute  the  Jones- 
boro  division  of  said  district ;  and  also  the  territory  embraced 
on  the  date  last  mentioned  in  the  counties  of  Arkansas,  Ashley, 
Bradley,  Chicot,  Clark,  Cleveland,  Conway,  Dallas,  Desha,  Drew, 
Faulkner,  Garland,  Grant,  Hot  Spring,  Jefferson,  Lincoln,  Lonoke, 
Montgomery,  Perry,  Pope,  Prairie,  Pulaski,  Saline,  Van  Buren  and 
White,  which  shall  constitute  the  western  division  of  said  district. 
Terms  of  the  district  court  for  the  eastern  division  shall  be  held  at 
Helena  on  the  second  Monday  in  March  and  the  first  Monday  in 
October;  for  the  northern  division,  at  Batesville  on  the  fourth 
Monday  in  May  and  the  second  Monday  in  December;  for  the 
Jonesboro  division,  at  Jonesboro  on  the  second  Mondays  in  May 
and  November ;  and  for  the  western  division,  at  Little  Rock  on  the 
first  Monday  in  April  and  the  third  Monday  in  October.  The  clerk 
of  the  court  for  the  eastern  district  shall  mantain  an  office  in  charge 
of  himself  or  a  deputy  at  Little  Rock,  at  Helena,  at  Jonesboro,  and 
at  Batesville,  which  shall  be  kept  open  at  all  times  for  the  transac- 
tion of  the  business  of  the  court.  And  the  clerk  of  the  court  for 
the  western  district  shall  mantain  an  office  in  charge  of  himself  or 
a  deputy  at  Fort  Smith,  at  Harrison,  and  at  Texarkana,  which 
shall  be  kept  open  at  all  times  for  the  transaction  of  the  business 
of  the  court. 

By  Act  of  Sept.  9,  1914,  e.  295  (38  Stat.  L.  713),  the  terms  of  the  district 
court  for  the  Jonesboro  division  of  the  eastern  district  of  Arkansas  were  fixed 
for  the  first  Monday  in  May  and  the  fourth  Monday  in  November.  By  Act 
of  March  4,  1915,  c.  170  (38  Stat.  L,  1193),  Desha  and  Chicot  counties  were 


480  Appendix 

transferred   to   the   eastern   division   of   tlic  eastern  district,   and  Yoll  county 
was  made  a  part  of  tho  western  .livision  of  the  eastern  district. 

§  72.  The  state  of  California  is  divided  into  two  districts,  to  be 
known  as  the  northern  and  southern  districts  of  California.  The 
southern  district  shall  include  the  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Fresno, 
Inyo,  Kern,  Kings,  IMadera,  Mariposa,  Merced  and  Tulare,  which 
shall  constitute  the  northern  division  of  said  district;  also  the  ter- 
ritory embraced  on  the  date  last  mentioned  in  the  counties  of 
Imperial,  Los  Angeles,  Orange,  Riverside,  San  Bernardino,  San 
Diego,  San  Luis  Obispo,  Santa  Barbara  and  Ventura,  which  shall 
constitute  the  southern  division  of  said  district.  Terms  of  the  dis- 
trict court  for  the  northern  division  shall  be  held  at  Fresno  on  the 
first  Monday  in  May  and  the  second  IMonday  in  November ;  and  for 
the  southern  division,  at  Los  Angeles,  on  the  second  Monday  in 
January  and  the  second  Monday  in  July,  and  at  San  Diego  on  the 
second  Monday  in  IMarch  and  September.  The  northern  district 
shall  include  the  territory  embraced,  on  the  first  day  of  July,  nine- 
teen hundred  and  ten,  in  the  counties  of  Del  Norte,  Siskiyou,  Mo- 
doc, Humboldt,  Trinity,  Shasta,  Lassen,  Tehama,  Plumas,  Men- 
docino, Lake,  Colusa,  Glenn,  Butte,  Sierra,  Sutter,  Yuba,  Nevada, 
Sonoma,  Napa,  Yolo,  Placer,  Solana,  Sacramento,  El  Dorado,  San 
Joaquin,  Amador,  Calaveras,  Stanislaus,  Tuolumne,  Alpine,  and 
Mono,  which  shall  eonsittute  the  northern  division  of  said  district ; 
also  the  territory  embraced,  on  the  date  last  mentioned,  in  the  coun- 
ties of  San  Francisco,  Marin,  Contra  Costa,  Alameda,  San  Mateo, 
Santa  Clara,  Santa  Cruz,  Monterey,  and  San  Benito,  which  shall 
constitute  the  southern  division  of  said  district.  Terms  of  the  dis- 
trict court  for  the  northern  division  of  the  northern  district  shall 
be  held  at  Sacramento  on  the  second  Monday  in  April  and  the  first 
Monday  in  October,  and  at  Eureka  on  the  third  Monday  in  July; 
and  for  the  southern  division  of  the  northern  district,  at  San  Fran- 
cisco on  the  first  Monday  in  March,  the  second  Monday  in  July,  and 
the  first  Monday  in  November.  The  clerk  of  the  district  court  for 
the  northern  district  shall  maintain  an  office  at  Sacramento,  in 
charge  of  himself  or  deputy,  which  shall  be  kept  open  at  all  times 
for  the  transaction  of  the  business  of  the  court. 

Amended  by  the  Act  of  May  16,  1916,  c.  122  (.-^O  Stat.  L.  122). 

§73.  The  state  of  Colorado  shall  constitute  one  judicial  district, 
to  be  known  as  the  district  of  Colorado.  Terms  of  the  district 
court  shall  be  held  at  Denver  on  the  first  Tuesday  in  May  and  No- 


The  Judicial  Code  481 

vember;  at  Pueblo  on  the  first  Tuesday  in  April;  at  Grand  Junc- 
tion on  the  second  Tuesday  in  September ;  at  Montrose  on  the  third 
Tuesday  in  September,  and  at  Duraugo  on  the  fourth  Tuesday  in 
September.  That  the  Secretary  of  the  Treasury,  in  constructing 
the  public  buildings  heretofore  authorized  to  be  constructed  at  the 
cities  of  Grand  Junction  and  Durango,  be,  and  he  is  hereby,  au- 
thorized and  empowered  to  provide  accommodations  in  each  of 
said  buildings  for  post  office,  United  States  court,  and  other  gov- 
ernmental offices,  and  the  existing  authorizations  for  said  buildings 
be  and  the  same  are  hereby  respectively  amended  accordingly ;  and 
the  unexpended  balance  of  all  appropriations  heretofore  made  for 
the  construction  of  said  buildings  and  all  appropriations  which  may 
l3e  provided  in  any  pending  legislation,  or  that  hereafter  may  be 
made  for  the  construction  of  said  buildings,  are  hereby  made  avail- 
able for  the  purpose  stated  in  this  paragraph :  Provided,  That  if  at 
the  time  the  holding  of  the  terms  of  said  court  in  any  years  in 
either  of  said  cities  of  Grand  Junction  and  Durango  there  is  no 
business  to  be  transacted  b}^  said  court,  the  term  may  be  adjourned 
or  continued  by  order  of  the  judge  of  said  court  in  chambers  at 
Denver,  Colorado:  And  provided  further,  That  the  marshal  and 
clerk  of  said  court  shall  each  respectively  appoint  at  least  one 
deputy  to  reside  at  and  "who  shall  maintain  an  office  at  each  of  the 
four  said  places  where  said  court  is  to  be  held  by  the  terms  of 
this  Act. 

Amondocl  by  the  Act  of  June  12,  1916,  c.  143   C39  Stat.  L.  225). 

§  74.  The  state  of  Connecticut  shall  constitute  one  judicial  dis- 
trict, to  be  known  as  the  district  of  Connecticut.  Terms  of  the 
district  court  shall  be  held  at  New  Haven  on  the  fourth  Tuesdays 
in  February  and  September,  and  at  Hartford  on  the  fourth  Tues- 
day in  May  and  the  first  Tuesday  in  December. 

§  75.  The  state  of  Delaware  shall  constitute  one  judicial  dis- 
trict, to  be  known  as  the  district  of  Delaware.  Terms  of  the  district' 
court  shall  be  held  at  Wilmington  on  the  second  Tuesdays  in  ]\Iarch, 
June,  September  and  December. 

§  76.  The  state  of  Florida  is  divided  into  two  districts,  to  be 
known  as  the  northern  and  southern  districts  of  Florida.  The 
southern  district  shall  include  the  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Baker, 
Bradford,  Brevard,  Citrus,  Clay,  Columbia,  Dade,  De  Soto,  Duval, 
Hamilton,  Hernando,  Hillsboro,  Lake,  Lee,  Madison,  Manat^ee, 
Wheaton  C.  F.  P.— 31 


482  Appendix 

Marion,  Monroe,  Nassau,  Orange,  Osceola,  Palm  Beach,  Pasco, 
Polk,  Putnam,  Saint  John,  Sumter,  Suwanee,  Saint  Lucie  and 
Volusia.  Terms  of  the  district  court  for  the  southern  district  shall 
be  held  at  Ocala  on  the  third  Monday  in  January;  at  Tampa  on 
the  second  Monday  in  February ;  at  Key  West  on  the  first  Mondays 
in  May  and  November;  at  Jacksonville  on  the  first  Monday  in  De- 
cember ;  at  Fernandina  on  the  first  Monday  in  April ;  and  at  Miami 
on  the  fourth  Monday  in  April.  The  district  court  for  the  southern 
district  shall  be  open  at  all  times  for  the  purpose  of  hearing  and  de- 
ciding causes  of  admiralty  and  maritime  jurisdiction.  The  northern 
district  shall  include  the  territory  embraced  on  the  first  day  of  July, 
nineteen  hundred  and  ten,  in  the  counties  of  Alachua,  Calhoun, 
Escambia,  Franklin,  Gadsden,  Holmes,  Jackson,  Jefferson,  Lafay- 
ette, Leon,  Levy,  Liberty,  Santa  Rosa,  Taylor,  Wakulla,  Walton 
and  Washington.  Terms  of  the  district  court  for  the  northern  dis- 
trict shall  be  held  at  Tallahassee  on  the  second  Monday  in  January ; 
at  Pensacola  on  the  first  ]\Iondays  in  May  and  November ;  at  Ma- 
rianna  on  the  first  Monday  in  April ;  and  at  Gainesville  on  the 
second  Mondays  in  June  and  December. 

§  77.  The  state  of  Georgia  is  divided  into  two  districts,  to  be 
known  as  the  northern  and  southern  districts  of  Georgia.  The 
northern  district  shall  include  the  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Camp- 
bell, Carroll,  Clayton,  Cobb,  Coweta,  Cherokee,  Dekalb,  Douglas, 
Dawson,  Fannin,  Fayette,  Fulton,  Forsyth,  Gilmer,  Gwinnett,  Hall, 
Henr}',  Lumpkin,  Milton,  Newton,  Pickens,  Rockdale,  Spalding, 
Towns  and  Union,  which  shall  constitute  the  northern  division  of 
said  district ;  also  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Banks,  Clarke,  Elbert,  Franklin,  Greene, 
Habersham,  Hart,  Jackson,  Morgan,  Madison,  Oglethorpe,  Oconee, 
Rabun,  Stephens,  Walton  and  White,  which  shall  constitute  the 
eastern  division  of  said  district;  also  the  territory  embraced  on 
the  date  last  mentioned  in  the  counties  of  Chattahoochee,  Clay, 
Early,  Harris,  Heard,  Meriwether,  Marion,  Muscogee,  Quitman, 
Randolph,  Schley,  Stewart,  Talbot,  Taylor,  Terrell,  Troup  and 
Webster,  which  shall  constitute  the  western  division  of  said  dis- 
trict; also  the  territory  embraced  on  the  date  last  mentioned  in 
the  counties  of  Bartow,  Chattooga,  Catoosa,  Dade,  Floyd,  Gordon, 
Haralson,  Murray,  Paulding,  Polk,  Walker  and  Whitfield,  which 
shall  constitute  the  northwestern  division  of  said  district.     Terms 


The  Judicial  Code  483 

of  the  district  court  for  northern  division  of  said  district  shall  be 
held  at  Atlanta  on  the  second  Monday  in  March  and  the  first  Mon- 
day in  October,  and  at  Gainesville  on  the  fourth  Mondays  in  April 
and  November,  and  it  shall  be  the  duty  of  the  judge  to  assign 
such  cases,  both  civil  and  criminal,  as  may  in  his  judgment  be  most 
convenient  to  the  parties  to  said  cases,  and  as  may  be  in  the  inter- 
est of  economical  expenditures  by  the  Government ;  for  the  eastern 
division,  at  Athens  on  the  second  Monday  in  April  and  the  first 
Monday  in  November;  for  the  western  division,  at  Columbus  on 
the  first  Mondays  in  May  and  December ;  and  for  the  northwestern 
division,  at  Rome  on  the  third  Mondays  in  May  and  November. 
The  clerk  of  the  court  for  the  northern  district  shall  maintain  an 
office  in  charge  of  himself  or  a  deputy  at  Athens,  at  Columbus  and 
at  Rome,  which  shall  be  kept  open  at  all  times  for  the  transaction 
of  the  business  of  the  court.  The  southern  district  shall  include 
the  territory  embraced  on  the  said  first  day  of  July,  nineteen  hun- 
dred and  ten,  in  the  counties  of  Appling,  Bulloch,  Bryan,  Camden, 
Chatham,  Emanuel,  Effingham,  Glynn,  Jeff  Davis,  Liberty,  Mont- 
gomery, Mcintosh,  Screven,  Tatnall,  Toombs  and  Wayne,  which 
shall  constitute  the  eastern  division  of  said  district ;  also  the  ter- 
ritory embraced  on  the  date  last  mentioned  in  the  counties  of  Bald- 
win, Bibb,  Butts,  Crawford,  Dodge,  Dooly,  Hancock,  Houston,  Jas- 
per, Jones,  Laurens,  Macon,  Monroe,  Pike,  Pulaski,  Putnam,  Sum- 
ter, Telfair,  Twiggs,  Upson,  "Wilcox  and  Wilkinson,  which  shall 
constitute  the  western  division ;  also  the  territory''  embraced  on  the 
date  last  mentioned  in  the  counties  of  Burke,  Columbia,  Glascock, 
Jefferson,  Jenkins,  Johnson,  Lincoln,  McDuffie,  Richmond,  Talia- 
ferro, Washington,  Wilkes  and  Warren,  Avhich  shall  constitute  the 
northeastern  division ;  also  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Berrien,  Brooks,  Charlton,  Clinch, 
Coffee,  Decatur,  Echols,  Grady,  L-win,  Lowndes,  Pierce  and  Ware, 
which  shall  constitute  the  southwestern  division ;  and  also  the  ter- 
ritory embraced  on  the  date  last  mentioned  in  the  counties  of 
Baker,  Ben  Hill,  Calhoun,  Crisp,  Colquitt,  Dougherty,  Lee,  Miller, 
Mitchell,  Thomas,  Tift,  Turner  and  Worth,  which  shall  constitute 
the  Albany  division.  Terms  of  the  district  court  for  the  western 
division  shall  be  held  at  Macon  on  the  first  Mondays  in  May  and 
October ;  for  the  eastern  division,  at  Savannah  on  the  second  Tues- 
days in  February,  May,  August  and  November ;  for  the  northeast- 
ern division,  at  Augusta  on  the  first  Monday  in  April  and  the  third 
Monday  in  November;  for  the  southwestern  division,  at  Valdosta 


484  Appendix 

on  the  second  Mondays  in  June  and  December ;  and  for  the  Albany 
division,  at  Albany  on  the  third  Mondays  in  June  and  December. 

Amended  by  Act  of  March  4,  1913,  c.  167  (37  Stat.  L.  1017).  By  Act  of 
March  3,  1915  (38  Stat.  L.  960),  tne  counties  of  Candler,  Jenkins  and  Evans 
were  attached  to  the  eastern  division  of  the  southeast  district,  and  the  counties 
of  Bacon  and  Thomas  to  the  southwestern  division  of  the  southern  district, 
and  the  county  of  Barrow  was  attached  to  the  eastern  division  of  the  northern 
district. 

§  78.  The  state  of  Idaho  shall  constitute  one  judicial  district,  to 
be  known  as  the  district  of  Idaho.  It  is  divided  into  four  divisions, 
to  be  known  as  the  northern,  central,  southern  and  eastern  di- 
visions. The  territory  embraced  on  the  first  day  of  July,  nineteen 
hundred  and  ten,  in  the  counties  of  Bonner,  Kootenai  and  Sho- 
shone, shall  constitute  the  northern  division  of  said  district;  and 
the  territory  embraced  on  the  date  last  mentioned  in  the  counties 
of  Idaho,  Latah  and  Nez  Perce,  shall  constitute  the  central  di- 
vision of  said  district ;  and  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Ada,  Boise,  Blaine,  Cassia,  Twin 
Falls,  Canyon,  Elmore,  Lincoln,  Owyhee  and  Washington,  shall 
constitute  the  southern  division  of  said  district;  and  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Bannock, 
Bear  Lake,  Bingham,  Custer,  Fremont,  Lemhi  and  Oneida,  shall 
constitute  the  eastern  division  of  said  district.  Terms  of  the  dis- 
trict court  for  the  northern  division  of  said  district  shall  be  held 
at  Coeur  d'Alene  City  on  the  fourth  Monday  in  May  and  the  third 
IMonday  in  November;  for  the  central  division,  at  Moscow  on  the 
second  Monday  in  ]\Iay  and  the  first  Monday  in  November ;  for  the 
southern  division,  at  Boise  City  on  the  second  Mondays  in  Febru- 
ary and  September;  and  for  the  eastern  division,  at  Pocatello  on 
the  second  IMondays  in  March  and  October.  The  clerk  of  the  court 
shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at  Coeur 
d'Alene  City,  at  Moscow,  at  Boise  City  and  at  Pocatello,  which 
shall  be  open  at  all  times  for  the  transaction  of  the  business  of  the 
court. 

§  79.  The  state  of  Illinois  is  divided  into  three  districts,  to  be 
known  as  the  northern,  southern  and  eastern  districts  of  Illinois. 
The  northern  district  shall  include  the  territory  embraced  on  the 
first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Cook,  Dekalb,  Dupage,  Cirundy,  Kane,  Kendall,  Lake,  LaSalle, 
Mcllcnry  and  Will,  which  shall  constitute  the  eastern  division; 
also  the  territory  embraced  on   the  date   last   mentioned  in  the 


The  Judicial  Code  485 

counties  of  Boone,  Carroll,  Jo  Daviess,  Lee,  Ogle,  Stephenson, 
Whiteside  and  Winnebago,  which  shall  constitute  the  western  di- 
vision. Terms  of  the  district  court  for  the  eastern  division  shall  be 
held  at  Chicago  on  the  first  Mondays  in  February,  March,  April, 
May,  June,  July,  September,  October  and  November,  and  the  third 
Monday  in  December;  and  for  the  western  division,  at  Freeport 
on  the  third  Mondays  in  April  and  October.  The  clerk  of  the  court 
for  the  northern  district  shall  mantain  an  office  in  charge  of  himself 
or  a  deputy  at  Chicago  and  at  Freeport,  w^hich  shall  be  kept  open 
at  all  times  for  the  transaction  of  the  business  of  the  court.  The 
marshal  for  the  northern  district  shall  maintain  an  offi.ce  in  the 
division  in  which  he  himself  does  not  reside  and  shall  appoint  at 
least  one  deputy  who  shall  reside  therein.  The  southern  district 
shall  include  the  territory  embraced  on  the  first  day  of  July,  nine- 
teen hundred  and  ten,  in  the  counties  of  Bureau,  Fulton,  Hender- 
son, Henry,  Knox,  Livingston,  McDonough,  Marshall,  Mercer,  Put- 
nam, Peoria,  Rock  Island,  Stark,  Tazewell,  Warren  and  Woodford, 
which  shall  constitute  the  northern  division ;  also  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Adams, 
Bond,  Brown,  Calhoun,  Cass,  Christian,  Dewitt,  Green,  Hancock, 
Jersey,  Logan,  McLean,  Macon,  Macoupin,  Madison,  Mason,  Me- 
nard, Montgomery,  Morgan,  Pike,  Sangamon,  Schuyler  and  Scott, 
which  shall  constitute  the  southern  division.  Terms  of  the  district; 
court  for  the  northern  division  shall  be  held  at  Peoria  on  the  third 
Mondays  in  April  and  October;  for  the  southern  division,  at 
Springfield  on  the  first  Mondays  in  January  and  June,  and  at 
Quincy  on  the  first  Mondays  in  March  and  September.  The  clerk 
of  the  court  for  the  southern  district  shall  maintain  an  office  in 
charge  of  himself  or  a  deputy  at  Peoria,  at  Springfield  and  at 
Quincy,  which  shall  be  kept  open  at  all  times  for  the  transaction 
of  the  business  of  the  court.  The  marshal  for  said  southern  district 
shall  appoint  at  least  one  deputy  residing  in  the  said  northern  di- 
vision, who  shall  maintain  an  office  at  Peoria,  The  eastern  district 
shall  include  the  territory  embraced  on  the  first  day  of  July,  nine- 
teen hundred  and  ten,  in  the  counties  of  Alexander,  Champaign, 
Clark,  Clay,  Clinton,  Coles,  Crawford,  Cumberland,  Douglas,  Ed- 
gar, Edwards,  Effingham,  Fayette,  Ford,  Franklin,  Gallatin,  Ham- 
ilton, Hardin,  Iroquois,  Jackson,  Jasper,  Jefferson,  Johnson,  Kan- 
kakee, Lawrence,  Marion,  Massac,  Monroe,  Moultrie,  Perry,  Piatt, 
Pope,  Pulaski,  Randolph,  Richland,  Saint  Clair,  Saline,  Shelby, 
Union,  Vermilion,  Wabash,  Washington,  Wayne,  White  and  Wil- 
liamson.    The  terms  of  the  district  court  for  the  eastern  district 


486  Appendix 

shall  be  held  at  Danville  on  the  first  Mondays  in  March  and  Sep- 
tember; at  Cairo  on  the  first  Mondays  in  April  and  October;  and 
at  East  Saint  Louis  on  the  first  Mondays  in  ]\Iay  and  November. 
The  clerk  of  the  court  for  the  eastern  district  shall  maintain  an 
office  in  charge  of  himself  or  a  deputy  at  Danville,  at  Cairo  and  at 
East  Saint  Louis,  which  shall  be  kept  open  at  all  times  for  the 
transaction  of  the  business  of  the  court,  and  shall  there  keep  the 
records,  files  and  documents  pertaining  to  the  court  at  that  place. 

§  80,  The  state  of  Indiana  shall  constitute  one  judicial  district, 
to  be  known  as  the  district  of  Indiana.  Terms  of  the  district  court 
shall  be  held  at  Indianapolis  on  the  first  Tuesday  in  ]\Iay  and  No- 
vember ;  at  New  Albany  on  the  first  Mondays  in  January'  and  July ; 
at  Evansville  on  the  first  Mondays  in  April  and  October;  at  Fort 
Waj-ne  on  the  second  Tuesdays  in  June  and  December;  and  at 
Hammond  on  the  third  Tuesdays  in  April  and  October.  The  clerk 
of  the  court  shall  appoint  four  deputy  clerks,  one  of  whom  shall 
reside  and  keep  his  office  at  New  Albany,  one  at  Evansville,  one 
at  Fort  Wayne  and  one  at  Hammond.  Each  deputy  shall  keep  in 
his  office  full  records  of  all  actions  and  proceedings  of  the  district 
court  held  at  that  place. 

§  81.  The  state  of  Iowa  is  divided  into  two  judicial  districts,  to 
be  known  as  the  northern  and  southern  districts  of  Iowa.  The 
northern  district  shall  include  the  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Alla- 
makee, Dubuque,  Buchanan,  Clayton,  Delaware,  Fayette,  Winne- 
shiek, Howard,  Chickasaw,  Bremer,  Blackhawk,  Floyd,  Mitchell 
and  Jackson,  which  shall  constitute  the  eastern  division  of  said 
district ;  also  the  territory  embraced  on  the  date  last  mentioned  in 
the  counties  of  Jones,  Cedar,  Linn,  Iowa,  Benton,  Tama,  Grundy 
and  Hardin,  which  shall  constitute  the  Cedar  Rapids  division ;  also 
the  territory  embraced  on  the  date  last  mentioned  in  the  counties 
of  Emmet,  Palo  Alto,  Pocahontas,  Calhoun,  Carroll,  Kossuth,  Hum- 
boldt, Webster,  Winnebago,  Hancock,  Wright,  Hamilton,  Worth, 
Cerro  Gordo,  Franklin  and  Butler,  which  shall  constitute  the  cen- 
tral division ;  also  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Dickinson,  Clay,  Buena  Vista,  Sac,  Osceola, 
O'Brien,  Cherokee,  Ida,  Lyon,  Sioux,  Plymouth,  Woodbury  and 
Monona,  which  shall  constitute  the  western  division.  Terms  of  the 
district  court  for  the  eastern  division  shall  be  held  at  Dubuque 
on  tho  ffjurtli  Tuesday  in  April  and  the  first  Tuesday  in  December, 


The  Judicial  Code  487 

and  at  Waterloo  on  tlie  second  Tuesdays  in  May  and  September; 
for  the  Cedar  Rapids  division,  at  Cedar  Rapids  on  the  first  Tues- 
day in  April  and  the  fourth  Tuesday  in  September;  for  the  central 
division,  at  Fort  Dodge  on  the  second  Tuesdays  in  June  and  No- 
vember; and  for  the  western  division,  at  Sioux  City  on  the  fourth 
Tuesday  in  May  and  the  third  Tuesday  in  October.  The  southern 
district  shall  include  the  territory  embraced  on  the  first  day  of 
July,  nineteen  hundred  and  ten,  in  the  counties  of  Louisa,  Henry, 
Des  Moines,  Lee  and  Van  Buren,  which  shall  constitute  the  eastern 
division  of  said  district ;  also  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Marshall,  Story,  Boone,  Greene, 
Guthrie,  Dallas,  Polk,  Jasper,  Poweshiek,  Marion,  Warren  and 
Madison,  which  shall  constitute  the  central  division  of  said  dis- 
trict ;  also  the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Crawford,  Harrison,  Shelby,  Audubon,  Cass,  Potta- 
wattamie, Mills  and  Montgomery,  which  shall  constitute  the  west- 
ern division  of  said  district;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Adair,  Adams,  Clarke,  De- 
catur, Fremont,  Lucas,  Page,  Ringgold,  Taylor,  Union  and  Wayne, 
which  shall  constitute  the  southern  division  of  said  district;  also 
the  territory  embraced  on  the  date  last  mentioned  in  the  counties 
of  Scott,  Muscatine,  Washington,  Johnson  and  Clinton,  which  shall 
constitute  the  Davenport  division  of  said  district ;  also  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Davis,  Ap- 
panoose, Mahaska,  Keokuk,  Jefferson,  Monroe  and  Wapello,  which 
shall  constitute  the  Ottumwa  division  of  said  district.  Terms  of 
the  district  court  for  the  eastern  division  shall  be  held  at  Keokuk 
on  the  sixth  Tuesday  after  the  fourth  Tuesday  in  February  and 
the  eighth  Tuesday  after  the  third  Tuesday  in  September;  for  the 
central  division,  at  Des  Moines  on  the  tenth  Tuesday  after  the 
fourth  Tuesday  in  February  and  the  tenth  Tuesday  after  the  third 
Tuesday  in  September;  for  the  western  division,  at  Council  Bluffs 
on  the  fourth  Tuesday  in  February  and  the  sixth  Tuesday  after 
the  third  Tuesday  in  September ;  for  the  southern  division,  at  Cres- 
ton  on  the  fourth  Tuesday  after  the  fourth  Tuesday  in  February 
and  the  third  Tuesday  in  September ;  for  the  Davenport  division, 
at  Davenport  on  the  eighth  Tuesday  atfer  the  fourth  Tuesday  in 
February  and  the  second  Tuesday  after  the  third  Tuesday  in  Sep- 
tember; and  for  the  Ottumwa  division,  at  Ottumwa  on  the  second 
Tuesday  after  the  fourth  Tuesday  in  February  and  the  fourth 
Tuesday  after  the  third  Tuesday  in  September. 

Amended  by  the  Acts  of  March  ajlPlH,  c.  122  (37  Stat.  L.  734),  Pebruary 
23,  1916,  c.  32  (39  Stat.  L.  12),  April  27,  1916,  c.  90  (39  Stat.  L.  55). 


488  Appendix 

§  82.  The  state  of  Kansas  shall  constitute  one  judicial  district, 
to  be  known  as  the  district  of  Kansas.  It  is  divided  into  three 
divisions,  to  be  known  as  the  first,  second  and  third  divisions  of 
the  district  of  Kansas.  The  first  division  shall  include  the  terri- 
tory embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten, 
in  the  counties  of  Atchison,  Brown,  Chase,  Cheyenne,  Clay,  Cloud, 
Decatur,  Dickinson,  Doniphan,  Douglas,  Ellis,  Franklin,  Geary, 
Gove,  Graham,  Jackson,  Jefferson,  Jewell,  Johnson,  Leavenworth, 
Lincoln,  Logan,  Lyon,  Marion,  Marshall,  Mitchell,  Morris,  Nemaha, 
Norton,  Osage,  Osborne,  Ottawa,  Phillips,  Pottawatomie,  Rawlins, 
Republic,  Riley,  Rooks,  Russell,  Saline,  Shawnee,  Sheridan,  Sher- 
man, Smith,  Thomas,  Trego,  "Wabaunsee,  Wallace,  Washington  and 
Wyandotte.  The  second  division  shall  include  the  territory  em- 
braced on  the  date  last  mentioned  in  the  counties  of  Barber,  Bar- 
ton, Butler,  Clark,  Comanche,  Cowley,  Edwards,  Ellsworth,  Fin- 
ney, Ford,  Grant,  Gray,  Greeley,  Hamilton,  Harper,  Harvey, 
Hodgeman,  Haskell,  Kingman,  Kiowa,  Kearny,  Lane,  McPherson, 
Morton,  Meade,  Ness,  Pratt,  Pawnee,  Reno,  Rice,  Rush,  Scott, 
Sedgwick,  Stafford,  Stevens,  Seward,  Sumner,  Stanton  and  Wich- 
ita. The  third  division  shall  include  the  territory  embraced  on 
the  said  date  last  mentioned  in  the  counties  of  Allen,  Anderson, 
Bourbon,  Cherokee,  Coffey,  Chautauqua,  Crawford,  Elk,  Green- 
wood, Labette,  Linn,  Miami,  Montgomery,  Neosho,  Wilson  and 
Woodson.  Terms  of  the  district  court  for  the  first  division  shall  be 
held  at  Leavenworth  on  the  second  Monday  in  October ;  at  Topeka 
on  the  second  INIonday  in  April;  at  Kansas  City  on  the  second 
Monday  in  January  and  the  first  Monday  in  October ;  and  at  Salina 
on  the  second  Monday  in  May.  Terms  of  the  district  court  for 
the  second  division  shall  be  held  at  Wichita  on  the  second  Mondays 
in  March  and  September ;  and  for  the  third  division,  at  Fort  Scott 
on  the  first  Monday  in  May  and  the  second  Monday  in  November. 
The  clerk  of  the  district  court  shall  appoint  three  deputies,  one  of 
whom  shall  reside  and  keep  his  oflSce  at  Fort  Scott,  one  at  Wichita, 
and  the  other  at  Salina,  and  the  marshal  shall  appoint  a  deputy 
who  shall  reside  and  keep  his  office  at  Fort  Scott,  and  the  marshal 
shall  also  appoint  a  deputy,  who  shall  reside  and  keep  his  office 
at  Kansas  (.ity. 

Amended  l.y  tlio  Act  of  Sept.  G,  1010,  c.  447  {:\9  Stat.  L.  725). 

§  83.  The  state  of  Kentucky  is  divided  into  two  districts,  to  be 
known  as  the  eastern  and  western  districts  of  Kentucky.  The 
eastern  district  shall  include  the  territory  embraced  on  the  first 


The  Judicial  Code  489 

day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Carroll, 
Trimble,  Henry,  Shelby,  Anderson,  Mercer,  Boyle,  Gallatin,  Boone, 
Kenton,  Campbell,  Pendleton,  Grant,  Owen,  P"'ranklin,  Bourbon, 
Scott,  Woodford,  Fayette,  Jessamine,  Garrard,  Madison,  Lincoln, 
Rockcastle,  Pulaski,  Wayne,  Whitley,  Bell,  Knox,  Harlan,  Laurel, 
Clay,  Leslie,  Letcher,  Perry,  Owsley,  Jackson,  Estill,  Lee,  Breathitt, 
Knott,  Pike,  Floyd,  Magoffin,  Martin,  Johnson,  Lawrence,  Boyd, 
Greenup,  Carter,  Elliott,  Morgan,  Wolfe,  Powell,  Menifee,  Clark, 
Montgomery,  Bath,  Rowan,  Lewis,  Fleming,  Mason,  Bracken, 
Robertson,  Nicholas  and  Harrison,  w^ith  the  waters  thereof.  Terms 
of  the  district  court  for  the  eastern  district  shall  be  held  at  Frank- 
fort on  the  second  Monday  in  March  and  the  fourth  Monday  in 
September;  at  Covington  on  the  first  Monday  in  April  and  the 
third  Monday  in  October ;  at  Richmond  on  the  fourth  Monday  in 
April  and  the  second  Monday  in  November;  at  London  on  the 
second  Monday  in  May  and  the  fourth  Monday  in  ]\Iay  and  the 
second  Monday  in  December ;  and  at  Jackson  on  the  first  Monday 
in  March  and  the  third  Monday  in  September:  Provided,  That 
suitable  rooms  and  accommodations  are  furnished  for  holding  court 
at  Jackson  free  of  expense  to  the  Government  until  such  time  as 
a  public  building  shall  be  erected  there.  The  western  district  shall 
include  the  territory  embraced  on  the  first  day  of  July,  nineteen 
hundred  and  ten,  in  the  counties  of  Oldham,  Jefferson,  Spencer, 
Bullitt,  Nelson,  Washington,  Marion,  Larue,  Taylor,  Casey,  Green, 
Adair,  Russell,  Clinton,  Cumberland,  Monroe,  Metcalf,  Allen, 
Barren,  Simpson,  Logan,  Warren,  Butler,  Hart,  Edmonson,  Bray- 
son,  Hardin,  Meade,  Breckinridge,  Hancock,  Daviess,  Ohio,  Mc- 
Lean, Muhlenberg,  Todd,  Christian,  Trigg,  Lyon,  Caldwell,  Living- 
ston, Crittenden,  Hopkins,  Webster,  Henderson,  Union,  Marshall, 
Calloway,  McCracken,  Graves,  Ballard,  Carlisle,  Hickman  and 
Fulton,  with  the  waters  thereof.  Terms  of  the  district  court  for 
the  'western  district  shall  be  held  at  Louisville  on  the  second  Mon- 
days in  March  and  October;  at  Owensboro  on  the  first  IMouday  in 
May  and  the  fourth  Monday  in  November ;  at  Paducah  on  the  third 
Mondays  in  April  and  November;  and  at  Bowling  Green  on  the 
third  Monday  in  May  and  the  second  Monday  in  December.  The 
clerk  of  the  court  for  the  eastern  district  shall  maintain  an  office 
in  charge  of  himself  or  a  deputy  at  Frankfort,  at  Covington,  at 
Richmond,  at  London,  at  Catlettsburg  and  at  Jackson;  and  the 
clerk  for  the  western  district  shall  maintain  an  office  in  charge  of 
himself  or  a  deputy  at  LouisviUe,  at  Owensboro,  at  Paducah,  and 
at  Bowling  Green,  each  of  which  offices  shall  be  kept  open  at  all 


490  Appendix 

times  for  the  transaction  of  the  business  of  said  court.  The  clerks 
of  the  courts  for  the  eastern  and  western  districts,  upon  issuing 
original  process  in  a  civil  action,  shall  make  it  returnable  to  the 
court  nearest  to  the  county  of  the  residence  of  the  defendant,  or 
of  that  defendant  whose  county  is  nearest  to  a  court,  and  shall, 
immediately  upon  payment  by  the  plaintiff  of  his  fees  accrued, 
send  the  papers  filed  to  the  clerk  of  the  court  to  which  the  process 
is  made  returnable;  and  whenever  the  process  is  not  thus  made 
returnable,  any  defendant  may,  upon  motion,  on  or  before  the  call- 
ing of  the  cause,  have  it  transferred  to  the  court  to  which  it  should 
have  been  sent  had  the  clerk  known  the  residence  of  the  defendant 
when  the  action  was  brought. 

§  84.  The  state  of  Louisiana  is  divided  into  two  judicial  dis- 
tricts, to  be  known  as  the  eastern  and  western  districts  of  Louisiana. 
The  eastern  district  shall  include  the  territory  embraced  on  the 
first  day  of  July,  nineteen  hundred  and  ten,  in  the  parishes  of 
Assumption,  Iberia,  Jefferson,  Lafourche,  Orleans,  Plaquemines, 
Saint  Bernard,  Saint  Charles,  Saint  James,  Saint  John  the  Baptist, 
Saint  Mary,  Saint  Tammany,  Tangipahoa,  Terrebonne  and  "Wash- 
ington, which  shall  constitute  the  New  Orleans  division;  also  the 
territory  embraced  on  the  date  last  mentioned  in  the  parishes  of 
Ascension,  East  Baton  Rouge,  East  Feliciana,  Livingston,  Pointe 
Coupee,  Saint  Helena,  Wast  Baton  Rouge,  Iberville  and  West 
Feliciana,  which  shall  constitute  the  Baton  Rouge  division  of  said 
district.  Terms  of  the  district  court  for  the  New  Orleans  division 
shall  be  held  at  New  Orleans  on  the  third  Mondays,  in  February, 
May  and  November;  and  for  the  Baton  Rouge  division,  at  Baton 
Rouge  on  the  second  Mondays  in  April  and  November.  The  clerk 
of  the  court  for  the  eastern  district  shall  maintain  an  office  in 
charge  of  himself  or  a  deputy  at  New  Orleans  and  at  Baton  Rouge 
which  shall  be  kept  open  at  all  times  for  the  transaction  of  the 
business  of  the  court.  The  western  district  shall  include  the  ter- 
ritory embraced  on  the  first  day  of  July,  nineteen  hundred  and 
ten,  in  the  parishes  of  Saint  Landry,  Evangeline,  Saint  Martin, 
Lafayette  and  Vermilion,  which  shall  constitute  the  Opelousas 
division  of  said  district ;  also  the  territory  embraced  on  the  date 
last  mentioned  in  the  parishes  of  Rapides,  Avoyelles,  Catahoula, 
La  Salle,  Grant  and  Winn,  which  shall  constitute  the  Alexandria 
division  of  said  district;  also  the  territ/)ry  embraced  on  the  said 
date  last  mentioned  in  the  parishes  of  Caddo,  De  Soto,  Bossier, 
Webster,  Claiborne,  Bienville,  Natchitoches,  Sabine  and  Red  River, 


The  Judicial  Code  491 

which  shall  constitute  the  Shreveport  division  of  said  district ;  also 
the  territory  embraced  on  the  date  last  mentioned  in  the  parishes 
of  Ouachita,  Franklin,  Richland,  Morehouse,  East  Carroll,  West 
Carroll,  Madison,  Tensas,  Concordia,  Union,  Caldwell,  Jackson  and 
Lincoln,  which  shall  constitute  the  Monroe  division  of  said  district ; 
also  the  territory  embraced  on  the  date  last  mentioned  in  the 
parishes  of  Acadia,  Calcasieu,  Cameron  and  Vernon,  which  shall 
constitute  the  Lake  Charles  division  of  said  district.  Terms  of  the 
district  court  for  the  Opelousas  division  shall  be  held  at  Opelousas 
on  the  first  Mondays  in  January  and  June;  for  the  Alexandria 
division,  at  Alexandria  on  the  fourth  Mondays  in  January  and 
June ;  for  the  Shreveport  division,  at  Shreveport  on  the  third  Mon- 
days in  February  and  October ;  for  the  Monroe  division,  at  Monroe 
on  the  first  Mondays  in  April  and  October;  and  for  the  Lake 
Charles  division,  at  Lake  Charles  on  the  third  Mondays  in  May 
and  December.  The  clerk  of  the  court  for  the  western  district 
shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at 
Opelousas,  at  Alexandria,  at  Shreveport,  at  Monroe  and  at  Lake 
Charles,  which  shall  be  kept  open  at  all  times  for  the  transaction 
of  the  business  of  the  court. 

§  85.  The  state  of  Maine  shall  constitute  one  judicial  district,  to 
be  known  as  the  district  of  Maine.  Terms  of  the  district  court 
shall  be  held  at  the  times  and  places  following.  At  Portland,  on 
the  first  Tuesday  in  April,  on  the  third  Tuesday  in  September, 
and  on  the  second  Tuesday  in  December  at  Bangor,  on  the  first 
Tuesday  in  June:  Provided,  however,  That  in  nineteen  hun- 
dred and  twelve  a  session  shall  be  held  at  Portland  on  the  first 
Tuesday  in  February. 

Amended  by  the  Act  of  Dec.  22,  1911,  c.  7  (37  Stat.  L.  51). 

By  the  Act  of  September  8,  1916,  c.  475  (39  Stat.  L.  850),  it  was  provided 
that: 

There  should  be  two  sessions  of  the  District  Court  for  the  District  of  Maine 
at  Bangor,  one  beginning  on  the  first  Tuesday  of  February  and  the  other  on 
the  first  Tuesday  in  June, 

There  should  be  three  sessions  of  said  court  at  Portland,  one  on  the  first 
Tuesday  in  April,  one  on  the  third  Tuesday  in  September  and  one  on  the 
second  Tuesday  in  December. 

That  the  marshal  should  keep  offices  at  Bangor  and  Portland, 

That  there  should  be  two  divisions  of  the  judicial  district  of  Maine,  a 
southern  and  a  northern  division, 

§  86.  The  state  of  Maryland  shall  constitute  one  judicial  dis- 
trict, to  be  known  as  the  district  of  Maryland.     Terms  of  the 


492  Appendix 

district  court  shall  be  held  at  Baltimore  on  the  ^rst  Tuesdays  in 
March,  June,  September  and  December;  and  at  Cumberland  on 
the  second  Monday  in  May  and  the  last  Monday  in  September. 
The  clerk  of  the  court  shall  appoint  a  deputy  who  shall  reside  and 
maintain  an  office  at  Cumberland,  unless  the  clerk  shall  himself 
reside  there;  and  the  marshal  shall  also  appoint  a  deputy,  who 
shall  reside  and  maintain  an  office  at  Cumberland,  unless  he  shall 
himself  reside  there. 

§  87.  The  state  of  Massachusetts  shall  constitute  one  judicial 
district,  to  be  known  as  the  district  of  Massachusetts.  Terms  of 
the  district  court  shall  be  held  at  Boston  on  the  third  Tuesday  in 
March,  the  fourth  Tuesda}^  in  June,  the  second  Tuesday  in  Sep- 
tember and  the  first  Tuesday  in  December;  and  at  Springfield,  on 
the  second  Tuesdays  in  May  and  December:  Provided,  That  suit- 
able rooms  and  accommodations  for  holding  court  at  Springfield 
shall  be  furnished  free  of  expense  to  the  Government  until  such 
time  as  a  federal  building  shall  be  erected  there  for  that  purpose. 
The  marshal  and  the  clerk  for  said  district  shall  each  appoint  at 
least  one  deputy,  to  reside  in  Springfield  and  to  maintain  an  office 
at  that  place. 

§  88.  The  state  of  Michigan  is  divided  into  two  judicial  dis- 
tricts, to  be  known  as  the  eastern  and  western  districts  of  Michigan. 
The  eastern  district  shall  include  the  territory  embraced  on  the 
first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Alcona,  Alpena,  Arenac,  Bay,  Cheboygan,  Clare,  Crawford, 
Genesee,  Gladwin,  Gratiot,  Huron,  Iosco,  Isabella,  Midland,  Mont- 
morency, Ogemaw,  Oscoda,  Otsego,  Presque  Isle,  Roscommon, 
Saginaw,  Shiawassee  and  Tuscolo,  which  shall  constitute  the 
northern  division;  also  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Branch,  Calhoun,  Clinton,  Hillsdale, 
Ingham,  Jackson,  Lapeer,  Lenawee,  Livingston,  IMacomb,  Monroe, 
Oakland,  St.  Clair,  Sanilac,  Washtenaw  and  Wayne,  which  shall 
constitute  the  southern  division  of  said  district.  Terms  of  the 
district  court  for  the  southern  division  shall  be  held  at  Detroit  on 
the  first  Tuesdays  in  March,  June  and  November ;  for  tlie  northern 
division,  at  Bay  City  on  the  first  Tuesdays  in  May  and  October, 
and  at  Port  Huron  in  the  discretion  of  the  judge  of  said  court  and 
at  such  times  as  he  shall  appoint  therefor.  There  shall  also  be 
held  a  special  or  adjourned  term  of  the  district  court  at  Bay  City 
for  llic  hearing  of  adinii;illy  causes,  beginning  in  the  month  of 


The  Judicial  Code  493 

February  in  each  year.  Tlie  western  district  shall  include  the 
territory  embraced  on  the  first  day  of  July,  nineteen  hundred  and 
ten,  in  the  counties  of  Alger,  Baraga,  Chippewa,  Delta,  Dickinson, 
Gogebic,  Houghton,  Iron,  Keweenaw,  Luce,  Mackinac,  Marquette. 
Menominee,  Ontonagon  and  Schoolcraft,  which  shall  constitute  the 
northern  division ;  also  the  territory  embraced  on  the  said  date  last 
mentioned  in  the  counties  of  Allegan,  Antrim,  Barry,  Benzie, 
Berrien,  Cass,  Charlevoix,  Eaton,  Emmet,  Grand  Traverse,  Ionia, 
Kalamazoo,  Kalkaska,  Kent,  Lake,  Leelanau,  Manistee,  Mason, 
]\Iacosta,  Missaukee,  Montcalm,  Muskegon,  Newaygo,  Oceana, 
Osceola,  Ottawa,  St.  Joseph,  Van  Buren  and  Wexford,  which  shall 
constitute  the  southern  division  of  said  district.  Terms  of  the 
district  court  for  the  southern  division  shall  be  held  at  Grand 
Rapids  on  the  first  Tuesdays  in  March  and  OctoTjer;  and  for  the 
northern  division,  at  Marquette  on  the  first  Tuesdays  in  May  and 
September.  All  issues  of  fact  shall  be  tried  at  the  terms  held  in 
the  division  where  such  suit  shall  be  commenced.  Actions  in  rem 
and  admiralty  may  be  brought  in  whichever  division  of  the  eastern 
district  service  can  be  had  upon  the  res.  Nothing  herein  contained 
shall  prevent  the  district  court  of  the  western  division  from  regu- 
lating, by  general  rule,  the  venue  of  transitory  actions  either  at 
law  or  in  equity,  or  from  changing  the  same  for  cause.  The  clerk 
of  the  court  for  the  western  district  shall  reside  and  keep  his 
office  at  Grand  Rapids,  and  shall  also  appoint  a  deputy  clerk 
for  said  court  held  at  Marquette,  who  shall  reside  and  keep 
his  office  at  that  place.  The  marshal  for  said  western  district 
shall  keep  an  ofKce  and  a  deputy  marshal  at  Marquette.  The 
clerk  of  the  court  for  the  eastern  district  shall  keep  his  office 
at  the  city  of  Detroit,  and  shall  appoint  a  deputy  for  the  court 
held  at  Bay  City,  who  shall  reside  and  keep  his  office  at  that 
place.  The  marshal  for  said  district  shall  keep  an  office  and  a 
deputy  marshal  at  Bay  City,  and  mileage  on  service  of  process 
in  said  northern  division  shall  be  computed  from  Bay  City. 

By  Act  of  July  9,  1912,  c.  222  (37  Stat.  L.  190),  the  terms  of  the  court  for 
the  -western  district  for  the  southern  division  were  fixed  for  Grand  Rapids  on 
the  first  Tuesdays  of  March,  June,  October  and  December,  and  for  the  northern 
division  at  Marquette  on  the  second  Tuesdays  of  April  and  September,  and  at 
Sault  Sainte  Marie  on  the  second  Tuesdays  of  January  and  July. 

§  89/  The  state  of  Minnesota  shall  constitute  one  judicial  dis- 
trict, to  be  known  as  the  district  of  Minnesota.  It  is  divided 
into  six  divisions,  to  be  known  as  the  first,  second,  third,  fourth, 
fifth   and   sixth    divisions.      The   first   division   shall   include   the 


494  Appendix 

territory  embraced  on  the  first  day  of  July,  nineteen  hundred 
and  ten,  in  the  counties  of  Winona,  Wabasha,  Olmsted,  Dodge, 
Steele,  Mower,  Fillmore  and  Houston.  The  second  division  shall 
include  the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Freeborn,  Faribault,  Martin,  Jackson,  Nobles,  Rock, 
Pipestone,  Murray,  Cottonwood,  Watonwan,  Blue  Earth,  Waseca, 
Lesueur,  Nicollet,  Brown,  Redwood,  Lyon,  Lincoln,  Yellow  Medi- 
cine, Sibley  and  Lac  qui  Parle.  The  tliird  division  shall  include 
the  territory  embraced  on  the  date  last  mentioned  in  the  counties 
of  Chisago,  Washington,  Ramsey,  Dakota,  Goodhue,  Rice,  and 
Scott,  The  fourth  division  shall  include  the  territory  embraced 
on  the  date  last  mentioned  in  the  counties  of  Hennepin,  Wright, 
Meeker,  Kandiyohi,  Swift,  Chippewa,  Renville,  McLeod,  Carver, 
Anoka,  Sherburne,  and  Isanti.  The  fifth  division  shall  in- 
clude the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Cook,  Lake,  Saint  Louis,  Itasca,  Koochiching,  Cass, 
Crow  Wing,  Aikin,  Carlton,  Pine,  Kanabec,  Mille  Lacs,  Morrison, 
and  Benton.  The  sixth  division  shall  include  the  territory  em- 
braced on  the  date  last  mentioned  in  the  counties  of  Stearns,  Pope, 
Stevens,  Bigstone,  Traverse,  Grant,  Douglas,  Todd,  Ottertail, 
Roseau,  Wilkin,  Clay,  Becker,  Wadena,  Norman,  Polk,  Red  Lake, 
Marshall,  Kittson,  Beltrami,  Clearwater,  Mahnomen,  and  Hubbard. 
Terms  of  the  district  court  for  the  first  division  shall  be  held  at 
Winona  on  the  third  Tuesdays  in  May  and  November ;  for  the 
second  division,  at  Mankato  on  the  fourth  Tuesdays  in  April  and 
October;  for  the  third  division,  at  Saint  Paul  oh  the  first  Tues- 
days in  June  and  December ;  for  the  fourth  division,  at  Minneapolis 
on  the  first  Tuesdays  in  April  and  October;  for  the  fifth  division, 
at  Duluth  on  the  second  Tuesdays  in  January  and  July;  and  for 
the  sixth  division,  at  Fergus  Falls  on  the  first  Tuesday  in  May  and 
second  Tuesday  in  November.  The  clerk  of  the  court  shall  appoint 
a  deputy  clerk  at  each  place  where  the  court  is  now  required  to  be 
held  at  which  the  clerk  shall  not  himself  reside,  who  shall  keep  his 
office  and  reside  at  the  place  appointed  for  the  holding  of  said 
court. 

§  90.  The  state  of  Mississippi  is  divided  into  two  judicial  dis- 
tricts, to  1)0  known  as  the  northern  and  southern  district  of 
Mississippi.  The  northern  district  shall  inclnde  the  territory  em- 
])raccd  on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the 
counties  of  Ah-orn.  Attala,  Chickasaw,  Choctaw,  Clay,  Itawamba, 
Lcc,  Lowndes,  Monroe,  Oklibbclui,  Ponotoc,  Prentiss,  Tishomingo, 
and  Winston,  which  shall  constitute  the  eastern  division  of  said 


The  Judicial  Code  495 

district;  also  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Benton,  Calhoun,  Carroll,  De  Soto,  Grenada, 
Lafayette,  ^Marshall,  Montgomery,  Panola,  Tate,  Tippah,  Union, 
Webster,  and  Yalobusha,  which  shall  constitute  the  western  division 
of  said  district ;  also  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Bolivar,  Coahoma,  Leflore,  Quitman, 
Sunflower,  Tallahatchie,  and  Tunica,  which  shall  constitute  the 
Delta  division  of  said  district.  The  terms  of  the  district  court  for 
the  eastern  division  shall  be  held  at  Aberdeen  on  the  first  Mondays 
in  April  and  October ;  and  for  the  western  division,  at  Oxford  on 
the  first  Mondaj's  in  June  and  December ;  and  for  the  Delta  divi- 
sion, at  Clarksdale  on  the  fourth  Mondays  in  January  and  July : 
Provided,  That  suitable  rooms  and  accommodations  for  holding 
court  at  Clarksdale  are  furnished  free  of  expense  to  the  United 
States.  The  southern  district  shall  include  the  territory  embraced 
on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties 
of  Adams,  Amite,  Copiah,  Covington,  Franklin,  Hinds,  Holmes, 
Jefferson,  Jefferson  Davis,  Lawrence,  Lincoln,  Madison,  Pike, 
Rankin,  Simpson,  Smith,  Scott,  Wilkinson,  and  Yazoo,  which  shall 
constitute  the  Jackson  division ;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Claiborne,  Issaquena,  Shar- 
key, Warren,  and  Washington,  which  shall  constitute  the  western 
division;  also  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Clarke,  Jones,  Jasper,  Kemper,  Lauderdale, 
Leake,  Neshoba,  Newton,  Moxubee,  and  Wayne,  which  shall  con- 
stitute the  eastern  division ;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Forrest,  Greene,  Hancock, 
Harrison,  Jackson,  Lamar,  Marion,  Perry,  and  Pearl  River,  which 
constitutes  the  southern  division  of  said  district.  Terms  of  the 
district  court  for  the  Jackson  division  shall  be  held  at  Jackson  on 
the  first  Mondays  in  May  and  November ;  for  the  western  division, 
at  Vicksburg  on  the  first  Mondays  in  January  and  July ;  for  the 
eastern  division,  at  Meridian  on  the  second  Mondays  in  March  and 
September;  and  for  the  southern  division,  at  Biloxi  on  the  third 
]Mondays  in  Februaiy  and  August.  The  clerk  of  the  court  for  each 
district  shall  maintain  an  office  in  charge  of  himself  or  a  deputy 
at  each  place  in  his  district  at  which  court  is  now  required  to  be 
held,  at  which  he  shall  not  himself  reside,  which  shall  be  kept  open 
at  all  times  for  the  transaction  of  the  business  of  the  court.  The 
marshal  for  each  of  said  districts  shall  maintain  an  office  in  charge 
of  himself  or  a  deputy  at  each  place  of  holding  court  in  his  district. 
Amended  by  the  Act  of  February  5,  1912,  c.  28  (37  Stat.  L.  59),  and  the 
Act  of  May  27,  1912,  c.  136  (37  Stat.  L.  118). 


496  Appendix 

§  91.  The  state  of  Missouri  is  divided  into  two  judicial  dis- 
tricts, to  be  kno^vn  as  the  eastern  and  western  districts  of  Missouri. 
The  eastern  district  shall  include  the  territory  embraced  on  the 
first  day  of  July,  nineteen  hundred  and  ten,  in  the  city  of  Saint 
Louis  and  the  counties  of  Audrain,  Crawford,  Dent,  Franklin, 
Gasconade,  Iron,  Jefferson,  Lincoln,  Maries,  Montgomery,  Phelps, 
Saint  Charles,  Saint  Francois,  Sainte  Genevieve,  Saint  Louis, 
"Warren,  and  "Washing-ton,  which  shall  constitute  the  eastern  divi- 
sion of  said  district ;  also  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Adair,  Chariton,  Clark,  Knox,  Lewis, 
Linn,  Macon,  Marion,  Monroe,  Pike,  Ralls,  Randolph,  Schuyler, 
Scotland,  and  Shelby,  which  shall  constitute  the  northern  division 
of  said  district;  also  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Bollinger,  Butler,  Cape  Girardeau,  Carter, 
Dunklin,  iladison,  Mississippi,  New  Madrid,  Pemiscot,  Perry,  Rey- 
nolds, Ripley,  Scott,  Shannon,  Stoddard,  and  "Wayne,  which  shall 
constitute  the  southeastern  division  of  said  district.  Terms  of  the 
district  court  for  the  eastern  division  shall  be  held  at  Saint  Louis 
on  the  third  ]Mondays  in  March  and  September,  and  at  Rolla  on 
the  second  I\Iondays  in  January  and  June :  Provided,  That  suitable 
rooms  and  accommodations  for  holding  court  at  Rolla  are  furnished 
free  of  expense  to  the  United  States ;  for  the  northern  division,  at 
Hannibal  on  the  fourth  IMonday  in  j\Iay  and  the  first  Monday  in 
December ;  and  for  the  southeastern  division  at  Cape  Girardeau  on 
the  second  Mondays  in  April  and  October.  The  western  district 
shall  include  the  territory  embraced  on  the  first  day  of  July,  nine- 
teen hundred  and  ten,  in  the  counties  of  Bates,  Caldwell,  Carroll, 
Cass,  Clay,  Grundy,  Henry,  Jackson,  Johnson,  Lafayette,  Liv- 
ingston, Mercer,  Putnam,  Ray,  Saint  Clair,  Saline  and  Sullivan, 
which  shall  constitute  the  western  division;  also  the  territory  em- 
braced on  the  date  last  mentioned  in  the  counties  of  Barton,  Barry. 
Jasper,  Lawrence,  McDonald,  Newton,  Stone,  and  Vernon,  which 
shall  constitute  the  southwestern  division ;  also  the  territory  em- 
braced on  the  date  last  mentioned  in  the  counties  of  Andrew. 
Atchison,  Buchanan,  Clinton,  Daviess,  Dekalb,  Gentry,  Holt. 
Harrison,  Nodaway,  Platte,  and  Worth,  which  shall  constitute  th'- 
Saint  Joseph  division ;  also  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Benton,  Boone,  Callaway,  Cooper. 
Camden,  Colo,  Hickory,  Howard,  IMiller,  Moniteau,  Morgan,  Osage, 
and  Pettis,  which  shall  constitute  the  central  division ;  also  th'^ 
territory  embraced  on  the  date  last  mentioned  in  the  counties  of 
Christian,  Cedar,  Dade.  Dallas.  Douglas,  Greene,  Howell,  Laclede, 


The  Judicial  Code  497 

Oregon,  Ozark,  Polk,  Pulaski,  Taney,  Texas,  Webster,  and  Wright, 
which  constitutes  the  southern  division.  Terms  of  the  district  court 
for  the  western  division  shall  be  held  at  Kansas  City  on  the  fourth 
I\Ionday  in  April  and  first  Monday  in  November,  and  at  Chillicothe 
on  the  fourth  JMonday  in  May  and  the  first  Monday  in  December : 
Provided,  That  suitable  rooms  and  accommodations  for  holding 
court  at  Chillicothe  are  furnished  free  of  expense  to  the  United 
States;  for  the  southwestern  division,  at  Joplin  on  the  second  Mon- 
day's in  June  and  January ;  for  the  Saint  Joseph  division,  at  Saint 
Joseph  on  the  first  Monday  in  March  and  third  Monday  in  Septem- 
ber;  for  the  central  division,  at  Jefferson  City  on  the  third  Mondays 
in  ]\Iarch  and  October ;  and  for  the  southern  division  at  Springfield 
on  the  first  Mondays  in  April  and  October. 

The  clerk  of  the  court  at  St.  Louis,  in  the  eastern  district,  shall 
maintain  an  office  in  charge  of  himself  or  a  deputy  at  St.  Louis 
and  Hannibal  and  at  such  other  places  of  holding  court  in  said 
district  as  may  be  deemed  necessary  by  the  judge  which  shall  be 
kept  open  at  all  times  for  the  transaction  of  the  business  of  the 
court. 

The  clerk  of  the  court  for  the  western  district  shall  maintain  an 
office  in  charge  of  himself  or  a  deputy  at  Kansas  City,  at  Jefferson 
City,  at  Saint  Joseph,  at  Chillicothe,  at  'Joplin  and  at  Springfield, 
which  shall  be  kept  open  at  all  times  for  the  transaction  of  the 
business  of  the  court. 

The  marshal  for  each  district  shall  also  maintain  an  office  in 
charge  of  himself  or  a  deputy  at  each  place  at  which  court  is  now 
held  in  his  district. 
Amended  by  the  Act  of  December  22,  1911,  c.  8  (37  Stat.  L.  51). 

§  92.  The  state  of  Montana  shall  constitute  one  judicial  dis- 
trict, to  be  known  as  the  district  of  Montana.  Terms  of  the 
district  court  shall  be  held  at  Helena  on  the  first  Mondays  in  April 
and  November;  at  Butte  on  the  first  Tuesdays  in  February  and 
September;  at  Great  Falls  on  the  first  Mondays  in  May  and  Octo- 
ber ;  at  Missoula  on  the  first  Mondays  in  January  and  June ;  and 
at  Billings  on  the  first  Mondays  in  March  and  August.  Causes, 
civil  and  ciiminal,  may  be  transferred  by  the  court  or  judge  thereof 
from  Helena  to  Butte  or  from  Butte  to  Helena,  or  from  Helena 
or  Butte  to  Great  Falls,  or  from  Great  Falls  to  Helena  or  Butte,  in 
said  district,  when  the  convenience  of  the  parties  or  the  ends  of 
justice  would  be  promoted  by  the  transfer ;  and  any  interlocutory 
order  may  be  made  by  the  court  or  judge  thereof  in  either  place. 
Wheaton  C.  F.  P.— 32 


498  Appendix 

§  93.  The  state  of  Nebraska  shall  constitute  one  judicial  dis- 
trict to  be  known  as  the  district  of  Nebraska.  Said  district  is 
divided  into  eight  divisions.  The  territory'  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Douglas, 
Sarpy,  Washington,  Dodge,  Colfax,  Platte,  Nance,  Boone,  Wheeler, 
Burt,  Thurston,  Dakota,  Cuming,  Cedar,  and  Dixon,  shall  con- 
stitute the  Omaha  division ;  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Madison,  Antelope,  Knox,  Pierce, 
Stanton,  Wayne,  Holt,  Boyd,  Rock,  Brown,  and  Keya  Paha,  shall 
constitute  the  Norfolk  division ;  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Cherry,  Sheridan,  Dawes,  Box- 
butte,  and  Sioux,  shall  constitute  the  Chadron  division;  the  ter- 
ritory embraced  on  the  date  last  mentioned  in  the  counties  of  Hall, 
Merrick,  Howard,  Greeley,  Garfield,  Valley,  Sherman,  Buffalo, 
Custer,  Loup,  Blaine,  Thomas,  Hooker,  and  Grant,  shall  constitute 
the  Grand  Island  division ;  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Lincoln,  Dawson,  Logan,  McPherson, 
Keith,  Deuel,  Garden,  Morrill,  Cheyenne,  Kimball,  Banner,  and 
Scott 's  Bluff,  shall  constitute  the  North  Platte  division ;  the  ter- 
ritory embraced  on  the  date  last  mentioned  in  the  counties  of  Cass, 
Otoe,  Johnson,  Nemaha,  Pa^vnee,  Richardson,  Gage,  Lancaster, 
Saunders,  Butler,  Seward,  Saline,  Jefferson,  Thayer,  Fillmore, 
York,  Polk,  and  Hamilton,  shall  constitute  the  Lincoln  division; 
the  territory  embraced  on  the  date  last  mentioned  in  the  counties 
of  Clay,  Nuckolls,  Webster,  Adams,  Kearney,  Franklin,  Harlan, 
and  Phelps,  shall  constitute  the  Hastings  division;  and  the  ter- 
litory  embraced  on  the  date  last  mentioned  in  the  counties  of 
Gosper,  Furnas,  Red  AVillow,  Frontier,  Hayes,  Hitchcock,  Dundy, 
Chase,  and  Perkins,  shall  constitute  the  McCook  division.  Terms 
of  the  district  court  for  the  Omaha  division  shall  be  held  at  Omaha 
on  the  first  Monday  in  April  and  the  fourth  Monday  in  September,- 
for  the  Norfolk  division,  at  Norfolk  on  the  third  Monday  in  Sep- 
tember; for  the  Chadron  division,  at  Chadron  on  the  second  Mon- 
day in  September;  for  the  Grand  Island  division,  at  Grand  Island 
on  the  second  I\Ionday  in  January ;  for  the  North  Platte  division, 
at  North  Platte  on  the  second  Monday  in  June;  for  the  Lincoln 
division,  at  Lincoln  on  the  second  Monday  in  May  and  the  first 
Monday  in  October;  for  the  Hastings  division,  at  Hastings  on  the 
se<;ond  Monday  in  March ;  and  for  the  McCook  division,  at  McCook 
on  the  first  Monday  in  Mai'ch :  Provided,  That  where  provision  is 
made  herein  for  holding  court  at  places  where  there  are  no  Federal 
buildings,  a  suitable  room  in  which  to  hold  court,  together  with 


The  Judicial  Code  499 

light  and  heat,  shall  be  provided  by  the  city  or  county  where  sucli 
court  is  held,  without  any  expense  to  the  United  States.  The  clerk 
of  the  court  shall  appoint  a  deputy  for  each  division  of  the  district 
in  which  he  does  not  himself  reside,  who  shall  keep  his  office  and 
reside  at  the  place  of  holding  court  in  the  division  for  which  he 
is  appointed. 

§  94.  The  state  of  Nevada  shall  constitute  one  judicial  district, 
to  be  known  as  the  district  of  Nevada.  Terms  of  the  district  court 
shall  be  held  at  Carson  City  on  the  first  Mondays  in  February,  Maj', 
and  October. 

§  95.  The  state  of  New  Hampshire  shall  constitute  one  judicial 
district,  to  be  known  as  the  district  of  New  Hampshire.  Terms  of 
the  district  court  shall  be  held  at  Portsmouth  on  the  last  Tuesday 
in  October,  at  Concord  on  the  last  Tuesday  in  April  and  the  second 
Tuesday  in  December,  and  at  Littleton  on  the  third  Tuesday  in 
September, 

Amended  by  the  Act  of  August  23,  1912,  c.  344  (37  Stat.  L.  357). 

§  96.  The  state  of  New  Jersey  shall  constitute  one  judicial  dis- 
trict, to  be  known  as  the  district  of  New  Jersey.  Terms  of  the 
district  court  shall  be  held  at  Newark  on  the  first  Tuesday  in  April 
and  the  first  Tuesday  in  November,  and  at  Trenton  on  the  third 
Tuesday  in  January  and  the  second  Tuesday  in  September  of  each 
year.  The  clerk  of  the  court  for  the  district  of  New  Jersey  shall 
maintain  an  office,  in  charge  of  himself  or  a  deputy,  at  Newark  and 
at  Trenton,  each  of  which  offices  shall  be  kept  open  at  all  times  for 
the  transaction  of  the  business  of  the  court ;  and  the  marshal  shall 
also  maintain  an  office,  in  charge  of  himself  or  a  deputy,  at  Newark 
and  at  Trenton,  each  of  which  offices  shall  be  kept  open  at  all 
times  for  the  transaction  of  the  business  of  the  court. 

Amended  by  the  Act  of  August  9,  1912,  c.  277  (37  Stat.  L.  265),  and  the  Act 
of  February  14,  1913,  c.  53  (37  Stat.  L.  674). 

§  000.  That  the  state,  when  admitted  as  aforesaid,  shall  consti- 
tute one  judicial  district,  and  the  circuit  and  district  courts  of  said 
district  shall  be  held  at  the  capital  of  said  state,  and  the  said 
district  shall,  for  judicial  purposes,  be  attached  to  the  eighth 
judicial  circuit.  There  shall  be  appointed  for  said  district  one 
district  judge,  one  United  States  attorney,  and  one  United  States 
marshal.     The  judge  of  said  district  shall  receive  a  yearly  salary 


500  Appendix 

the  same  as  other  similar  judges  of  the  United  States,  payable  as 
provided  for  by  law,  and  shall  reside  in  the  district  to  which  he  is 
appointed.  There  shall  be  appointed  clerks  of  said  court,  who 
shall  keep  their  offices  at  the  capital  of  said  state.  The  regular 
terms  of  said  courts  shall  be  held  on  the  first  Monday  in  April  and 
the  first  ]\Ionday  in  October  of  each  year.  The  circuit  and  district 
courts  for  said  district,  and  the  judges  thereof,  respectively,  shall 
possess  the  same  powers  and  jurisdiction  and  perform  the  same 
duties  required  to  be  performed  by  the  other  circuit  and  district 
courts  and  judges  of  the  United  States,  and  shall  be  governed  by 
the  same  laws  and  regulations.  The  marshal,  district  attorney,  and 
the  clerks  of  the  circuit  and  district  courts  of  said  district,  and  all 
other  officers  and  persons  performing  duties  in  the  administration 
of  justice  therein,  shall  severally  possess  the  powers  and  perform 
the  duties  lawfully  possessed  and  required  to  be  performed  by 
similar  officers  in  other  districts  of  the  United  States,  and  shall,  for 
the  services  they  may  perform,  receive  the  fees  and  compensation 
now  allowed  by  law  to  officers  performing  similar  services  for  the 
United  States  in  the  Territory  of  New  Mexico. 
Act  of  June  20,  1910,  c.  310  (36  Stat.  L.  565). 

§  97.  The  state  of  New  York  is  divided  into  four  judicial  dis- 
tricts, to  be  known  as  the  northern,  eastern,  southern,  and  western 
districts  of  New  York.  The  northern  district  shall  include  the 
territory  embraced  on  the  first  day  of  July,  nineteen  hundred  and 
ten,  in  the  counties  of  Albany,  Broome,  Cayuga,  Chenango,  Clin- 
ton, Cortland,  Delaware,  Essex,  Franklin,  Fulton,  Hamilton,  Her- 
kimer, Jeffer.son,  Lewis,  Madison,  Montgomery,  Oneida,  Onondaga, 
Oswego,  Otsego,  Rensselaer,  Saint  Lawrence,  Saratoga,  Schenec- 
tady, Schoharie,  Tioga,  Tompkins,  Warren,  and  AVashington,  with 
the  waters  thereof.  Terms  of  the  district  court  for  said  district 
shall  be  held  at  Albany  on  the  second  Tuesday  in  February;  at 
Utica  on  the  fir.st  Tuesday  in  December;  at  Bingliamton  on  the 
second  Tuesday  in  June;  at  Auburn  on  the  first  Tuesday  in  Octo- 
ber; at  Syracuse  on  the  first  Tuesday  in  April ;  and  in  the  discretion 
of  the  judge  of  the  court,  one  term  annually  at  such  time  and  place 
within  the  counties  of  Saratoga,  Onondaga,  Saint  Lawrence,  Clin- 
ton, JofTerson,  Oswego,  and  Franklin,  as  he  may  from  time  to  time 
appoint.  Such  appointment  shall  be  made  by  notice  of  at  least 
twenty  days  {inblished  in  a  newspaper  published  at  the  place 
where  said  coxrt  is  to  be  lield.  The  eastern  district  shall  include 
the  tcrriKiry  cnibiaicj  on  the  first  day  of  July,  nineteen  hundred 


The  Judicial  Code  501 

and  ten,  in  the  counties  of  Kichmond,  Kings,  Queens,  Nassau,  and 
Suffolk,  with  the  waters  thereof.  Terms  of  the  district  court  for 
said  district  shall  be  held  at  Brooklyn  on  the  first  Wednesday  in 
every  month.  The  southern  district  shall  include  the  territory 
embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the 
counties  of  Columbia,  Dutchess,  Greene,  New  York,  Orange,  Put- 
nam, Rockland,  Sullivan,  Ulster,  and  Westchester,  with  the  waters 
thereof.  Terms  of  the  district  court  for  said  district  shall  be  held 
at  New  York  City  on  the  first  Tuesday  in  each  month.  The  district 
courts  of  the  southern  and  eastern  districts  shall  have  concurrent 
jurisdiction  over  the  waters  within  the  counties  of  New  York, 
Kings,  Queens,  Nassau,  Richmond,  and  Suffolk,  and  over  all  seizures 
made  and  all  matters  done  in  such  waters;  all  processes  or  orders 
issued  within  either  of  said  courts  or  by  any  judge  thereof  shall 
run  and  be  executed  in  any  part  of  said  waters.  The  western  dis- 
trict shall  include  the  territory  embraced  on  the  first  day  of  July, 
nineteen  hundred  and  ten,  in  the  counties  of  Allegheny,  Cat- 
taraugus, Chautauqua,  Chemung,  Erie,  Genesee,  Livingston,  Mon- 
roe, Niagara,  Ontario,  Orleans,  Schuyler,  Seneca,  Steuben,  Wayne, 
Wyoming,  and  Yates,  with  the  waters  thereof.  Terms  of  the 
district  court  for  said  district  shall  be  held  at  Elmira  on  the  second 
Tuesday  in  January ;  at  Buffalo  on  the  second  Tuesdays  in  March 
and  November ;  at  Rochester  on  the  second  Tuesday  in  May ;  at 
Jamestown  on  the  second  Tuesday  in  July;  at  Lockport  on  the 
second  Tuesday  in  October;  and  at  Canandaigua  on  the  second 
Tuesday  in  September.  The  regular  sessions  of  the  district  court 
for  the  western  district  for  the  hearing  of  motions  and  for  pro- 
ceedings in  bankruptcy  and  the  trial  of  causes  in  admiralty,  shall 
be  held  at  Buffalo  at  least  two  weeks  in  each  month  of  the  year, 
except  August,  unless  the  business  is  sooner  disposed  of.  The 
times  for  holding  the  same  and  such  other  special  sessions  as  the 
court  shall  deem  necessary  shall  be  fixed  by  rules  of  the  court. 
All  process  in  admiralty  causes  and  proceedings  shall  be  made 
returnable  at  Buffalo.  The  judge  of  any  district  in  the  state  of 
New  York  may  perform  the  duties  of  the  judge  of  any  other  dis- 
trict in  such  state  upon  the  request  of  any  resident  judge  entered 
in  the  minutes  of  his  court ;  and  in  such  cases  such  judges  shall 
have  the  same  powers  as  are  vested  in  the  resident  judge. 

§  98.  The  state  of  North  Carolina  is  divided  into  two  districts, 
to  be  known  as  the  eastern  and  western  districts  of  North  Carolina. 
The  eastern  district  shall  include  the  territory  embraced  on  the 


502  Appendix 

first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Beaufort,  Bertie,  Bladen,  Brunswick,  Camden,  Chatham,  Cumber- 
land, Currituck,  Craven,  Columbus,  Chowan,  Carteret,  Dare,  Du- 
plin, Durham,  Edgecombe,  Franklin,  Gates,  Granville,  Greene, 
Halifax,  Harnett,  Hertford,  Hyde,  Johnston,  Jones,  Lenoir,  Lee, 
Martin,  Moore,  Nash,  New  Hanover,  Northampton,  Onslow,  Pam- 
lico, Pasquotank,  Pender,  Perquimans,  Person,  Pitt,  Robeson,  Rich- 
mond, Sampson,  Scotland,  Tyrell,  Vance,  Wake,  Warren,  Wash- 
ington, Wayne,  and  Wilson.  Terms  of  the  district  court  for  the 
eastern  district  shall  be  held  at  Laurinburg  on  the  last  Mondays 
in  March  and  September ;  at  Wilson  on  the  first  Mondays  in  April 
and  October;  at  Elizabeth  City  on  the  second  Mondays  in  April 
and  October ;  at  Washington  on  the  third  Mondays  in  April  and 
October;  at  Newbern  on  the  fourth  ]\Iondays  in  April  and  Octo- 
ber; at  Wilmington  on  the  second  Monday  after  the  fourth  Mon- 
days in  April  and  October;  and  at  Raleigh  on  the  fourth  Monday 
after  the  fourth  Mondays  in  April  and  October:  Provided,  That 
the  city  of  Washington,  the  city  of  Laurinburg,  and  the  city  of 
Wilson  shall  each  provide  and  furnish  at  its  own  expense  a  suita- 
ble and  convenient  place  for  holding  the  district  court  at  Wash- 
ington, at  Laurinburg,  and  at  Wilson,  until  a  courthouse  shall  be 
constructed  by  the  United  States.  The  clerk  of  the  court  for  the 
eastern  district  shall  mantain  an  office  in  charge  of  himself  or  a 
deputy  at  Raleigh,  at  Wilmington,  at  Newbern,  at  Elizabeth  City, 
at  Washington,  at  Laurinburg,  and  at  Wilson,  which  shall  be  kept 
open  at  all  times  for  the  transaction  of  the  business  of  the  court. 
The  western  district  shall  include  the  territory  embraced  on  the 
first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Alamance,  Alexander,  Ashe,  Alleghany,  Anson,  Buncombe,  Burke, 
Caswell,  Cabarrus,  Catawba,  Cleveland,  Caldwell,  Clay,  Cherokee, 
Davidson,  Davie,  Forsyth,  Guilford,  Gaston,  Graham,  Henderson, 
Haywood,  Iredell,  Jackson,  Lincoln,  Montgomery,  IMecklenburg, 
Mitchell,  McDowell,  IMadison,  Macon,  Orange,  Polk,  Randolph, 
Rockingham,  Rowan,  Rutherford,  Stanly,  Stokes,  Surry,  Swain, 
Transylvania,  Union,  Wilkes,  Watauga,  Yadkin,  and  Yancey. 
Terms  of  the  district  court  for  the  western  district  shall  be  held  at 
Greensboro  on  the  first  ^londays  in  June  and  December;  at  States- 
viDe  on  the  Ihird  Mondays  in  April  and  October;  at  Salisbury  on 
the  fourth  Mondays  in  April  and  October;  at  Asheville  on  the 
first  .Mondays  in  May  and  November;  at  (''harlotte  on  the  first 
Moriflays  in  April  and  October;  and  at  Wilkesboro  on  the  fourth 
Mondays  in  May  and  November.     The  clerk  of  the  court  for  the 


The  Judicial  Code  503 

western  district  shall  maintain  an  office  in  charge  of  himself  or  a 
deputy  at  Greensboro,  at  Asheville,  at  Statesville,  and  at  Wilkes- 
boro,  which  shall  be  kept  open  at  all  times  for  the  transaction  of 
the  business  of  the  court. 
Amended  hj  the  Act  of  October  7,  1914,  c.  318  (:^8  Stat.  L.  728). 

§  99.  The  state  of  North  Dakota  shall  constitute  one  judicial 
district,  to  be  known  as  the  district  of  North  Dakota.  The  terri- 
tory embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten, 
m  the  counties  of  Burleigh,  Stutsman,  Logan,  Mcintosh,  Emmons, 
Kidder,  Foster,  Wells,  McLean,  Sheridan,  Adams,  Bowman,  Dunn, 
Hettinger,  Morton,  Stark,  and  McKenzie,  shall  constitute  the  south- 
western division  of  said  district ;  and  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Cass,  Richland,  Barnes, 
Dickey,  Sargent,  Lamoure,  Ransom,  Griggs,  and  Steele,  shall  con- 
stitute the  southeastern  division  ;  and  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Grand  Forks,  Traill,  Walsh, 
Pembina,  Cavalier,  and  Nelson,  shall  constitute  the  northeastern 
division ;  and  the  territory  embraced  on  the  date  last  mentioned  in 
the  counties  of  Ramsey,  Eddy,  Benson,  Towner,  Rolette,  Bottineau, 
Pierce,  and  McHenry,  shall  constitute  the  northwestern  division ; 
and  the  territory  embraced  on  the  date  last  mentioned  in  the  coun- 
ties of  Ward,  Williams,  Montraille,  Burk,  and  Renville,  shall  con- 
stitute the  western  division.  The  several  Indian  reservations  and 
parts  thereof  within  said  state  shall  constitute  a  part  of  the  several 
divisions  within  which  they  are  respectively  situated.  Terms  of 
the  district  court  for  the  southwestern  division  shall  be  held  at 
Bismarck  on  the  first  Tuesday  in  March ;  for  the  southeastern  divi- 
sion, at  Fargo  on  the  third  Tuesday  in  May ;  for  the  northeastern 
division,  at  Grand  Forks  on  the  second  Tuesday'  in  November ;  for 
the  northwestern  division,  at  Devils  Lake  on  the  first  Tuesday  in 
July ;  and  for  the  western  division,  at  Minot  on  the  second  Tuesday 
in  October.  The  clerk  of  the  court  shall  maintain  an  office  in 
charge  of  himself  or  a  deputy  at  each  place  at  which  court  is  now 

held  in  his  district. 

Amended  by  the  Act  of  February  5,  1912,  c.  28  (37  Stat.  L.  60),  and  the 
Act  of  July  17,  1916,  c.  248  (39  Stat.  L.  386). 

§  100.  The  state  of  Ohio  is  divided  into  two  judicial  districts,  to 
be  known  as  the  northern  and  southern  districts  of  Ohio.  The 
northern  district  shall  include  the  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Ashland, 
Ashtabula,   Cuyahoga,   Carroll,   Columbiana,    Crawford,    Geauga, 


504  Appendix 

Holmes,  Lake,  Lorain,  Medina,  Mahoning,  Portage,  Richland, 
Summit,  Stark,  Tuscarawas,  Trumbull,  and  Wayne,  which  shall 
constitute  the  eastern  division ;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Auglaize,  Allen,  Defiance, 
Erie,  Fulton,  Henry,  Hancock,  Hardin,  Huron,  Lucas,  Mercer, 
Marion,  Ottawa,  Paulding,  Putnam,  Seneca,  Sandusky,  Van  Wert, 
Williams,  Wood,  and  Wyandotte,  which  shall  constitute  the  west- 
ern division  of  said  district.  Terms  of  the  district  court  for  the 
eastern  division  shall  be  held  at  Cleveland  on  the  first  Tuesdays  in 
February,  April,  and  October,  and  at  Youngstown  on  the  first 
Tuesday  after  the  first  ^Monday  in  March ;  and  for  the  western  divi- 
sion, at  Toledo  on  the  last  Tuesdays  in  April  and  October.  Grand 
and  petit  jurors  summoned  for  sei'vice  at  a  term  of  court  to  be 
held  at  Cleveland  may,  if  in  the  opinion  of  the  court  the  public 
convenience  so  requires,  be  directed  to  serve  also  at  the  term  then 
being  held  or  authorized  to  be  held  at  Youngstown.  Crimes  and 
offenses  committed  in  the  eastern  division  shall  be  cognizable  at 
the  terms  held  at  Cleveland,  or  at  Youngsto\\"n,  as  the  court  may 
direct.  Any  suit  brought  in  the  eastern  division  may,  in  the  dis- 
cretion of  the  court,  be  tried  at  the  term  held  at  Youngsto"s\Ti. 
The  southern  district  shall  include  the  territory  embraced  on  the 
first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Adams,  Brown,  Butler,  Champaign,  Clark,  Clermont,  Clinton, 
Darke,  Greene,  Hamilton,  Highland,  Lawrence,  Miami,  Mont- 
gomery, Preble,  Scioto,  Shelby,  and  Warren,  which  shall  constitute 
the  western  division;  also  the  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Athens,  Belmont,  Coshocton,  Dela- 
ware, Fairfield,  Fayette,  Franklin,  Gallia,  Guernsey,  Harrison, 
Hocking,  Jackson,  Jefferson,  Knox,  Licking,  Logan,  Madison, 
Meigs,  Monroe,  Morgan,  Morrow,  LIuskingum,  Noble,  Perry,  Pick- 
away, Pike,  Ross,  Union,  Vinton,  and  Washington,  which  shall 
constitute  the  eastern  division  of  said  district.  Terms  of  the  dis- 
trict court  for  the  western  division  shall  be  held  at  Cincinnati  on 
the  first  Tuesdays  in  February,  April,  and  October;  and  for  the 
eastern  division,  at  Columbus  on  the  first  Tuesdays  in  June  and 
December,  and  at  Steubenville  on  the  first  Tuesdays  of  March  and 
September.  Grand  and  petit  juries  summoned  for  service  at  a 
Uvm  of  court  held  at  Columbus  may,  if  in  the  opinion  of  the  court 
the  public  convenience  so  requires,  be  directed  to  serve  also  at 
the  term  b^ing  held  or  authorized  to  be  held  at  Steubenville. 
Crimes  and  ofYcnscs  commit  tod  in  the  eastern  division  shall  be  cog- 
nizabjf  ;it  the  tf-rms  hold  at  Columbus,  or  at  Steubenville,  as  the 


The  Judicial  Cqde  505 

court  may  direct.  Any  suit  brought  in  the  eastern  division  may, 
in  the  discretion  of  the  court,  be  tried  at  the  term  held  at  Steuben- 
ville.  Provided,  That  suitable  rooms  and  accommodations  for 
holding  court  at  Steubenville  shall  be  furnished  free  of  expense 
to  the  Government  until  the  completion  of  the  Federal  building: 
And  provided  further,  That  tei-ms  of  the  district  court  for  the 
southern  district  shall  be  held  at  Dayton  on  the  first  Mondays  in 
May  and  November.  Prosecutions  for  crimes  and  offenses  com- 
mitted in  any  part  of  said  district  shall  also  be  cognizable  at  the 
terms  held  at  Daj-ton.  All  suits  which  may  be  brought  within  the 
southern  district,  or  either  division  thereof,  may  be  instituted,  tried, 
and  determined  at  the  terms  held  at  Dayton. 
Amended  by  the  Act  of  March  4,  1915,  c.  159  (38  Stat.  L.  1187). 

§  101.  The  state  of  Oklahoma  is  divided  into  two  judicial  dis- 
tricts, to  be  known  aa  the  eastern  and  the  western  districts  of 
Oklahoma.  The  eastern  district  shall  include  the  territory  em- 
braced on  the  first  day  of  July,  nineteen  hundred  and  sixteen,  in 
the  counties  of  Adair,  Atoka,  Bryan,  Craig,  Cherokee,  Creek,  Choc- 
taw, Coal,  Carter,  Delaware,  Garvin,  Grady,  Haskell,  Hughes, 
Johnston,  Jefferson,  Latimer,  Le  Flore,  Love,  McClain,  Mayes, 
Muskogee,  Mcintosh,  McCurtain,  Murray,  Marshall,  Nowata, 
Ottawa,  Olonulgee,  Ofuskee,  Pittsburg,  Pushmataha,  Pontotoc, 
Rogers,  Stephens,  Sequoyah,  Seminole,  Tulsa,  Washington,  and 
Wagoner.  Terms  of  the  district  court  for  the  eastern  district  shall 
be  held  at  Muskogee  on  the  first  Monday  in  January ;  at  Vinita  on 
the  first  Monday'  in  March ;  at  Tulsa  on  the  first  Monday  in  April ; 
at  South  McAlester  on  the  first  IVIonday  in  June ;  at  Ardmore  on 
the  first  Monday  in  October ;  and  at  Chickasha  on  the  first  Monday 
in  November  in  each  year.  The  w^estern  district  shall  include  the 
territory  embraced  on  the  first  day  of  July,  nineteen  hundred  and 
sixteen,  in  the  counties  of  Alfalfa,  Beaver,  Beckliam,  Blaine, 
Caddo,  Canadian,  Cimarron,  Cleveland,  Comanche,  Cotton,  Custer, 
Dewey,  Ellis,  Garfield,  Grant,  Greer,  Harmon,  Harper,  Jackson, 
Kay,  Kingfisher,  Kiowa,  Lincoln,  Logan,  Majors,  Noble,  Oklahoma, 
Osage,  Pawnee,  Payne,  Pottowatomie,  Roger  Mills,  Texas,  Tillman, 
Washita,  Woods,  and  Woodward.  Terms  of  the  district  court  for 
the  western  district  shall  be  held  at  Oklahoma  City  on  the  first 
Monday  in  Januarj%  at  Enid  on  the  first  Monday  in  March,  at 
Guthrie  on  the  first  Monday  in  May,  at  Lawton  on  the  first  Monday 
in  September,  and  at  Woodward  on  the  second  Monday  in  Novem- 
ber :  Provided,  That  suitable  rooms  and  accommodations  for  hold- 


506  Appendix 

ing  court  at  Woodward  are  furnished  free  of  expense  to  the 
United  States.  The  clerk  of  the  district  court  for  the  eastern  dis- 
trict shall  keep  his  office  at  Muskogee  and  the  clerk  for  the  western 
district  at  Guthrie,  and  shall  maintain  an  office  in  charge  of  him- 
self or  a  deputy  at  Oklahoma  City. 

Amended  by  the  Act  of  February  20,  1917,  e.  102  (39  Stat.  L.  927),  and  the 
Act  of  June  13,  1918,  c,  97  (40  Stat.  L.  604-605). 

By  the  Act  of  February  26,  1919,  e.  54  (40  Stat.  L.  1184),  it  was  provided 
that  there  should  be  a  term  of  court  for  the  Eastern  Judicial  District  of 
Oklahoma  at  Hugo  on  the  second  Monday  in  May. 

§  102.  The  state  of  Oregon  shall  constitute  one  judicial  district, 
to  be  known  as  the  district  of  Oregon.  Terms  of  the  district  court 
shall  be  held  at  Portland  on  the  first  Mondays  in  March,  July,  and 
November ;  at  Pendleton  on  the  first  Tuesday  in  April ;  and  at  Med- 
ford  on  the  first  Tuesday  in  October,  The  marshal  and  the  clerk 
for  said  district  shall  each  appoint,  in  the  manner  provided  by 
law,  at  least  one  deputy  at  Pendleton  and  one  at  Medford,  who 
shall  reside  and  maintain  an  office  at  each  of  said  places. 

§  103.  The  state  of  Pennsylvania  is  divided  into  three  judicial 
districts,  to  be  known  as  the  eastern,  middle,  and  western  districts 
of  Pennsylvania.  The  eastern  district  shall  include  the  territory 
embraced  on  the  first  day  of  July,  nineteen  hundred  and  ten,  in 
the  counties  of  Berks,  Bucks,  Chester,  Delaware,  Lancaster,  Lehigh, 
Montgomery,  Northampton,  Philadelphia,  and  Schuylkill.  Terms 
of  the  district  court  shall  be  held  at  Philadelphia  on  the  second 
Mondays  in  ]\Iarch  and  June,  the  third  Monday  in  September,  and 
the  second  Monday  in  December,  each  term  to  continue  until  the 
succeeding  term  begins.  The  middle  district  shall  include  the  ter- 
ritory embraced  on  the  first  day  of  July,  nineteen  hundred  and 
ten,  in  the  counties  of  Adams,  Bradford,  Cameron,  Carbon,  Center, 
Clinton,  Columbia,  Cumberland,  Dauphin,  Franklin,  Fulton, 
Huntingdon,  Juniata,  Lackawanna,  Lebanon,  Luzerne,  Lycoming, 
^MifBin,  Monroe,  Montour,  Northumberland,  Perry,  Pike,  Potter, 
Snyder,  Sullivan,  Susquehanna,  Tioga,  Union,  Wayne,  Wyoming, 
and  York.  Terms  of  the  district  court  shall  be  held  at  Scranton 
on  the  second  Monday  in  March  and  the  third  Monday  in  October; 
at  Ilarrisburg  on  the  first  Mondays  in  May  and  December;  at 
Sunbury  on  the  second  Monday  in  January;  and  at  Williamsport 
on  the  first  Monday  in  June.  The  clerk  of  the  court  for  the  middle 
district  shall  maintain  an  office  in  charge  of  himself  or  a  deputy 
at  Ilarrisburg;  and  civil  suits  inslitiitcd  at  lliat  jilace  shall  be  tried 


The  Judicial  Code  507 

there,  if  either  party  resides  nearest  that  place  of  holding  court, 
unless  bj"  consent  of  parties  they  are  removed  to  another  place  for 
trial.  The  western  district  shall  include  the  territory  embraced  on 
the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Allegheny,  Armstrong,  Beaver,  Bedford,  Blair,  Butler,  Cambria, 
Clarion,  Clearfield,  Crawford,  Elk,  Erie,  Fayette,  Forest,  Greene, 
Indiana,  Jefl'erson,  Lawrence,  McKean,  Mercer,  Somerset,  Venango, 
Warren,  Washington,  and  Westmoreland.  Terms  of  the  district 
court  shall  be  held  at  Pittsburgh  on  the  first  Monday  of  May  and 
the  second  Monday  of  November,  and  terms  of  the  court  shall  be 
held  at  Erie  on  the  third  Monday  of  March,  and  the  third  Monday 
of  September,  The  clerk  and  marshal  of  said  district  shall  have 
their  principal  office  at  Pittsburgh,  and  shall  maintain,  by  them- 
selves or  by  their  deputies,  offices  at  Erie.  The  clerk  shall  place 
all  cases  in  which  the  defendants  reside  in  the  counties  of  said 
district  nearest  Erie  upon  the  trial  list  for  trial  at  Erie,  where  the 
same  shall  be  tried,  unless  the  parties  thereto  stipulate  that  the 
same  may  be  tried  at  Pittsburgh. 

Amended  by  the  Acts  of  March  3,  1913,  e.  113  (37  Stat.  L.  730),  June  6, 
1914,  c.  104  (38  Stat.  L.  385),  and  Septem'ber  9,  1914,  e.  296  (38  Stat.  L.  713). 

§  104.  The  state  of  Rhode  Island  shall  constitute  one  judicial 
district,  to  be  known  as  the  district  of  Rhode  Island.  Terms  of  the 
district  court  shall  be  held  at  Providence  on  the  fourth  Tuesday 
in  May  and  the  third  Tuesday  in  November. 

Amended  by  the  Act  of  February  1,  1912,  c.  27  (37  Stat.  L.  59). 

§  105.  The  state  of  South  Carolina  is  divided  into  tw^o  districts, 
to  be  known  as  the  easto-n  and  western  districts  of  South  Carolina. 
The  western  district  shall  include  the  territory  embraced  on  the 
first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Abbeville,  Anderson,  Cherokee,  Chester,  Edgefield,  Fairfield,  Green- 
ville, Greenwood,  Lancaster,  Laurens,  Newberry,  Oconee,  Pickens, 
Saluda,  Spartanburg.  Union,  and  York.  Terms  of  the  district 
court  for  the  western  district  shall  be  hold  at  Greenville  on  the 
third  Tuesdays  in  April  and  October.  The  eastern  district  shall 
include  the  territory  embraced  on  the  first  day  of  July,  nineteen 
hundred  and  ten,  in  the  counties  of  Aiken,  Bamberg,  Barnwell, 
Beaufort,  Berkeley,  Calhoun,  Charleston,  Chesterfield,  Clarendon, 
Colleton,  Darlington,  Dillon,  Dorchester,  Florence,  Georgetown, 
Hampton,  Horry,  Kershaw,  Lee,  Lexington,  Marion,  Marlboro, 
Orangeburg,  Richland,  Sumter,  and  Williamsburg.     Terms  of  the 


508  Appendix 

district  court  for  the  eastern  district  shall  be  held  at  Charlestcn 
on  the  first  Tuesdays  in  June  and  December;  at  Columbia  on  the 
third  Tuesday  in  January  and  the  first  Tuesday  in  November,  the 
latter  term  to  be  solely  for  the  trial  of  civil  cases ;  and  at  Florence 
on  the  first  Tuesday  in  March.  The  ofiices  of  the  clerk  of  the 
district  court  shall  be  at  Greenville  and  at  Charleston ;  and  the 
clerk  shall  reside  in  one  of  said  cities  and  have  a  deputy  in  the 
other. 

Amended  by  the  Act  of  Feb.  5,  1912,  c.  28  (37  Stat.  L.  60). 

By  Act  of  March  3,  1915,  c.  105  (38  Stat.  L.  961),  amended  by  the  Act  of 
Sept  1,  1916,  c.  423  (39  Stat.  L.  721),  it  is  provided  that  "These  terms  of 
the  district  court  for  the  eastern  district  shall  be  held  at  Charleston  on  the 
first  Tuesdays  in  June  and  December;  at  Columbia  on  the  third  Tuesday  in 
January,  first  Tuesday  in  November;  at  Florence,  first  Tuesday  in  March;  and 
at  Aiken  on  the  first  Tuesdays  in  April  and  October.  Terms  of  the  district 
court  for  the  western  district  shall  be  held  at  Greenville  on  the  first  Tuesday 
in  April  and  the  first  Tuesday  in  October;  at  Koek  Hill,  the  second  Tuesdays  in 
March  and  September;  and  at  Greenwood,  the  first  Tuesdays  in  February  and 
November.  The  office  of  the  clerk  of  the  district  court  for  the  western  district 
shall  be  at  Greenville  and  the  office  of  the  clerk  of  the  district  court  for  the 
eastern  district  shall  be  at  Charleston." 

The  same  act  provides  for  a  district  judge,  a  district  attorney  and  a 
marshal  for  each  district. 

§  106.  The  state  of  South  Dakota  shall  constitute  one  judicial 
district,  to  be  known  as  the  district  of  South  Dakota.  The  ter- 
ritory embraced  on  the  first  day  of  July,  nineteen  hundred  and 
ten,  in  the  counties  of  Aurora,  Beadle,  Bon  Homme,  Brookings, 
Bnile,  Charles  Mix,  Clay,  Davison,  Douglas,  Gregory,  Hanson, 
Hutchinson,  Kingsbury,  Lake,  Lincoln,  McCook,  ]\liner,  Minnehaha, 
IMoody,  Sanborn,  Turner,  Union,  and  Yankton,  and  in  the  Yankton 
Indian  reservation,  shall  constitute  the  southern  division  of  said 
district;  the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Brown,  Campbell,  Clark,  Codington,  Corson,  Day, 
Deuel,  Edmunds,  Grant,  Hamlin,  McPher.son,  IMarshall,  Roberts, 
Schnasse,  Spink,  and  Walworth,  and  in  the  Sisseton  and  Wahpeton 
Indian  reservation,  and  in  that  portion  of  the  Standing  Rock 
Indian  reservation  lying  in  South  Dakota,  shall  constitute  the 
northern  division ;  the  territory  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Armstrong,  BufTalo,  Dewey,  Fanlk,  Hand, 
Hughes,  Hyde,  Jerauld,  Lyman,  Potter,  Stanley,  and  Sully,  and 
in  the  Cheyenne  River,  Lower  Brule,  and  Crow  Creek  Indian 
reservations,  shall  constitute  the  central  division  ;  and  the  territoiy 
embraced  on  the  date  last  mentioned  in  the  counties  of  Bennett, 


The  Judicial  Code  509 

Butte,  Custer,  Fall  River,  Harding,  Lawrence,  Meade,  Mellette, 
Pennington,  Perkins,  Shannon,  Todd,  Tripp,  Washabaugh,  and 
Washington,  and  in  the  Rosebud  and  Pine  Ridge  Indian  reserva- 
tions, shall  constitute  the  westem  division.  Terms  of  the  district 
court  for  the  southern  division  shall  be  held  at  Sioux  Falls  on  the 
first  Tuesday  in  April  and  the  third  Tuesday  in  October ;  for  the 
northern  division,  at  Aberdeen  on  the  first  Tuesday  in  May  and 
the  second  Tuesday  in  November;  for  the  central  division,  at 
Pierre  on  the  second  Tuesday  in  June  and  the  first  Tuesday  in 
October;  and  for  the  western  division,  at  Deadwood  on  the  third 
Tuesday  in  May  and  the  first  Tuesday  in  September.  The  clerk 
of  the  district  court  shall  maintain  an  office  in  charge  of  himself 
or  a  deputy  at  Sioux  Falls,  at  Pierre,  at  Aberdeen,  and  at  Dead- 
wood,  which  shall  be  kept  open  for  the  transaction  of  the  business 
of  the  court. 

§  107.  The  state  of  Tennessee  is  divided  into  three  districts,  to 
be  known  as  the  eastern,  middle,  and  western  districts  of  Tennessee. 
The  eastern  district  shall  include  the  territory  embraced  on  the 
first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of 
Bledsoe,  Bradley,  Hamilton,  James,  McMinn,  Marion,  Meigs,  Polk, 
Rhea,  and  Sequatchie,  which  shall  constitute  the  southern  division 
of  said  district ;  also  the  territoiy  embraced  on  the  date  last  men- 
tioned in  the  counties  of  Anderson,  Blount,  Campbell,  Claiborne, 
Grainger,  Jefferson,  Knox,  Loudon,  Monroe,  IVIorgan,  Roane,  Sevier, 
Scott,  and  Union,  which  shall  constitute  the  northern  division  of 
said  district ;  also  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Carter,  Cocke,  Green,  Hamblen,  Hancock,  Haw- 
kins, Johnson,  Sullivan,  Unicoi,  and  Washington,  which  shall  con- 
stitute the  northeastern  division  of  said  district.  Terms  of  the 
district  court  for  the  southern  division  of  said  district  shall  be  held 
at  Chattanooga  on  the  fourth  Monday  in  April  and  the  second 
Monday  in  November;  for  the  northern  division,  at  Knoxville  on 
the  fourth  Monday  in  May  and  the  first  Monday  in  December; 
and  for  the  northeastern  division,  at  Greeneville  on  the  first  Mon- 
day in  March  and  the  third  Monday  in  September.  The  middle 
district  shall  include  the  territory  embraced  on  the  first  day  of 
July,  nineteen  hundred  and  ten,  in  the  counties  of  Bedford,  Can- 
non, Cheatham,  Coffee,  Davidson,  Dickson,  Franklin,  Giles,  Grundy, 
Hickman,  Humphreys,  Houston,  Lawrence,  Lewis,  Lincoln,  Mar- 
shall, Maury,  Montgomery,  ]\Ioore,  Robertson,  Rutherford,  Stewart, 
Sumner,    Trousdale,   Warren,   Wayne,   Williamson,    and   Wilson, 


510  Appendik 

which  shall  constitute  the  Nashville  division  of  said  district;  also 
the  territory  embraced  on  the  date  last  mentioned  in  the  counties 
of  Clay,  Cumberland,  DeKalb,  Fentress,  Jackson,  Macon,  Overton, 
Pickett,  Putnam,  Smith,  Van  Buren,  and  White,  which  shall  con- 
stitute the  northeastern  division  of  said  district.  Terms  of  the 
district  court  for  the  Nashville  division  of  said  district  shall  be 
held  at  Nashville  on  the  second  Monday  in  March  and  the  fourth 
Monday  in  September ;  and  for  the  northeastern  division,  at  Cooke- 
ville  on  the  third  Monday  in  April  and  the  first  Monday  in  Novem- 
ber: Provided,  That  suitable  accommodations  for  holding  court  at 
Cookeville  shall  be  provided  by  the  county  or  municipal  authorities 
■svithout  expense  to  the  United  States.  The  western  district  shall 
include  the  territory  embraced  on  the  first  day  of  July,  nineteen 
hundred  and  ten,  in  the  counties  of  Dyer,  Fayette,  Haywood, 
Lauderdale,  Shelby,  and  Tipton,  which  shall  constitute  the  western 
division  of  said  district ;  also  the  territory  embraced  on  the  date 
last  mentioned  in  the  counties  of  Benton,  Carroll,  Chester,  Crockett, 
Decatur,  Gibson,  Hardeman,  Hardin,  Henderson,  Henry,  Lake, 
McNairy,  ]\Iadison,  Obion,  Perry  and  Weakley,  including  the 
waters  of  the  Tennessee  River  to  low  water  mark  on  the  eastern 
shore  thereof  wherever  such  river  forms  the  boundary  line  between 
the  western  and  middle  districts  of  Tennessee,  from  the  north  line 
of  the  state  of  Alabama  north  to  the  point  in  Henry  county,  Ten- 
nessee, where  the  south  boundary  line  of  the  state  of  Kentucky 
strikes  the  west  bank  of  the  river,  which  shall  constitute  the  eastern 
division  of  said  district.  Terms  of  the  district  court  for  the  west- 
em  division  of  said  district  shall  be  held  at  Memphis  on  the  fourth 
Mondays  in  May  and  November;  and  for  the  eastern  division,  at 
Jackson  on  the  fourth  Mondays  in  April  and  October.  The  clerk 
of  the  court  for  the  western  district  shall  appoint  a  deputy  who 
shall  reside  at  Jackson.  The  marshal  for  the  western  district  shall 
appoint  a  deputy  who  shall  reside  at  Jackson.  The  marshal  for 
the  eastern  district  shall  appoint  a  deputy  who  shall  reside  in 
Chattanooga.  The  clerk  of  the  court  for  the  eastern  district  shall 
maintain  an  office  in  charge  of  himself  or  a  deputy  at  Knoxville,  at 
Chattanooga,  and  at  Greeneville,  which  shall  be  kept  open  at  all 
times  for  the  transaction  of  the  business  of  the  court. 

Amended  by  tho  Act  of  August  20,  1912,  c.  306  (37  Stat.  L.  314). 

By  tho  Art  of  Juno  22,  1916,  c.  161  (39  Stat.  L.  232),  provision  was  made 
for  holflin){  crtiirt  nt  WinchoHtor  on  tlio  first  Monday  in  April  and  third  Monday 
in  Nnvciiiticr. 


The  Judicial  Code  511 

§  108.  The  state  of  Texas  is  divided  into  four  districts,  to  be 
known  as  the  northern,  eastern,  western,  and  southern  districts  of 
Texas.  The  northern  district  shall  include  the  territory  embraced 
on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties 
of  Dallas,  Ellis,  Hunt,  Johnson,  Kaufman,  Navarro,  and  Rockwell, 
which  shall  constitute  the  Dallas  division;  also  the  territory  em- 
braced on  the  date  last  mentioned  in  the  counties  of  Archer,  Baylor, 
Clay,  Comanche,  Erath,  Foard,  Hardeman,  Hood,  Jack,  Palo  Pinto, 
Parker,  Tarrant,  Wichita,  Wilbarger,  Wise,  and  Young,  which  shall 
constitute  the  Fort  Worth  division ;  also  the  territory  embraced  on 
the  date  last  mentioned  in  the  counties  of  Armstrong,  Bailey, 
Briscoe,  Carson,  Castro,  Childress,  Cochran,  Collingsworth,  Cottle, 
Crosby,  Dallam,  Deaf  Smith,  Dickens,  Donley,  Floyd,  Gray,  Hale, 
Hall,  Hansford,  Hartley,  Hemphill,  Hockley,  Hutchinson,  King, 
Lamb,  Lipscomb,  Lubbock,  Moore,  Motley,  Ochiltree,  Oldham, 
Parmer,  Potter,  Randall,  Roberts,  Sherman,  Swisher,  and  Wheeler, 
which  shall  constitute  the  Amarillo  division ;  also  the  territory  em- 
braced on  the  date  last  mentioned  in  the  counties  of  Andrews, 
Borden,  Callahan,  Dawson,  Eastland,  Fisher,  Gaines,  Garza,  Has- 
kell, Howard,  Jones,  Kent,  Knox,  Lynn,  Martin,  Midland,  Mitchell, 
Nolan,  Scurry,  Shackelford,  Stephens,  Stonewall,  Taylor,  Terry, 
Throckmorton  and  Yoakum,  which  shall  constitute  the  Abilene 
division;  also  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Brown,  Coke,  Coleman,  Concho,  Crockett,  Glass- 
cock, Iron,  Manard,  Mills,  Runnels,  Schleicher,  Sterling,  Sutton, 
Tom  Green,  and  Upton,  which  shall  constitute  the  San  Angelo 
division  of  the  said  district.  Terms  of  the  district  court  for  the 
Dallas  division  shall  be  held  at  Dallas  on  the  second  Monday  in 
January  and  the  first  Monday  in  May ;  for  the  Fort  Worth  division, 
at  Fort  Worth  on  the  first  Monday  in  November  and  the  second 
Monday  in  March;  for  the  Amarillo  division,  at  Amarillo  on  the 
third  Monday  in  April  and  the  fourth  Monday  in  September ;  for 
the  Abilene  division,  at  Abilene  on  the  first  Monday  in  October  and 
the  second  Monday  in  April ;  and  for  the  San  Angelo  division  at 
San  Angelo  on  the  third  Monday  in  October  and  the  fourth  Mon- 
day in  April.  The  clerk  of  the  court  for  the  northern  district  shall 
maintain  an  office  in  charge  of  himself  or  a  deputy  at  Dallas,  at 
Fort  Worth,  at  Amarillo,  at  Abilene,  and  at  San  Angelo,  which 
shall  be  kept  open  at  all  times  for  the  transaction  of  the  business 
of  the  court.  The  eastern  district  shall  include  the  territory  em- 
braced on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the 
counties   of   Anderson,    Angelina,    Cherokee,    Gregg,    Henderson, 


"j12  Appendix 

Iloiistou,  Nacogdoches,  Panola,  Rains,  Rusk,  Smith,  Van  Zandt, 
and  Wood,  which  shall  constitute  the  Tyler  division ;  also  the  ter- 
i-itory  embraced  on  the  date  last  mentioned  in  the  counties  of 
Hardin,  Jasper,  Jeffei-son,  Liberty,  Newton,  Orange,  Sabine,  San 
Augustine,  Shelby,  and  Tyler,  which  shall  constitute  the  Beaumont 
division ;  also  the  territory  embraced  on  the  date  last  mentioned 
in  the  counties  of  Collin,  Cook,  Denton,  Grayson,  and  Montague, 
which  shall  constitute  the  Sherman  division;  also  the  territory 
embraced  on  the  date  last  mentioned  in  the  counties  of  Camp,  Cass, 
Harrison,  Hopkins,  Marion,  Morris,  and  Upshur,  which  shall  con- 
stitute the  Jefferson  division;  also  the  territory  embraced  on  the 
date  last  mentioned  in  the  counties  of  Delta,  Fannin,  Red  River, 
and  Lamar,  which  shall  constitute  the  Paris  division ;  also  the  ter- 
ritory embraced  on  the  date  last  mentioned  in  the  counties  of 
Bowie,  Franklin,  and  Titus,  which  shall  constitute  the  Texarkana 
division.  Terms  of  the  district  court  for  the  Tyler  division  shall 
be  held  at  Tyler  on  the  fourth  Mondays  in  January  and  April ;  for 
the  Jefferson  division,  at  Jefferson  on  the  first  Monday  in  October 
and  the  third  Monday  in  February ;  for  the  Beaumont  division,  at 
Beaumont  on  the  third  Monday  in  November  and  the  first  Monday 
in  April ;  for  the  Sherman  division,  at  Sherman  on  the  first  Mon- 
day in  January  and  the  third  Monday  in  May ;  for  the  Paris  divi- 
sion, at  Paris  on  the  third  IMonday  in  October  and  the  first  Monday 
in  March ;  and  for  the  Texarkana  division  at  Texarkana  on  the 
third  Monday  in  ]\Iarch  and  the  first  Monday  in  November.  The 
clerk  of  the  court  for  the  eastern  district  shall  maintain  an  ofi&ce 
in  charge  of  himself  or  a  deputy  at  Sherman,  at  Beaumont,  and 
at  Texarkana,  which  shall  be  kept  open  at  all  times  for  the  trans- 
action of  the  business  of  said  court.  The  western  district  shall 
include  the  territorv  embraced  on  the  first  day  of  July,  nineteen 
hundred  and  ten,  in  the  counties  of  Bastrop,  Blanco,  Burleson, 
Burnet,  Caldwell,  Gillespie,  Hays,  Kimble,  Lampasas,  Lee,  Llano, 
Mason,  IMcCulloch,  San  Saba,  Travis,  Washington,  and  Williamson, 
which  shall  constitute  the  Austin  division;  also  the  territory  em- 
braced on  the  date  last  mentioned  in  the  counties  of  Atascosa, 
Bandera,  Bexar,  Comal,  Dimmit,  Edwards,  Frio,  Gonzales,  Guada- 
lupe, Karnes,  Kendall,  Kerr,  Medina,  and  Wilson,  which  shall 
constituff  the  San  Antonio  division;  also  the  territory  embraced 
on  the  datf  last  mentioned  in  the  counties  of  Brewster,  Crane, 
Ector,  El  Paso,  Jeff  Davis,  Loving,  Reeves,  Presidio,  Ward,  and 
Winkler,  which  sliail  constitute  the  El  Paso  division;  also  the 
tcrriton'  embraced  on  the  date  last  mentioned  in  the  counties  of 


The  Judicial  Code  ,  513 

Bell,  Bosque,  Con-ell,  Falls,  Hamilton,  Freestone,  Hill,  Leon, 
Limestone,  McLennan,  Milan,  Robertson,  and  Somervell,  which 
shall  constitute  the  AVaco  division;  also  the  territory  embraced  on 
the  date  last  mentioned  in  the  counties  of  Kinney,  Maverick,  Pecos, 
Terrell,  Uvalde,  Valverde,  and  Zavalla,  which  shall  constitute  the 
Del  Rio  division.  Terms  of  the  district  court  for  the  Austin  divi- 
sion shall  be  held  at  Austin  on  the  fourth  Monday  in  January  and 
the  second  Monday  in  June ;  for  the  Waco  division  on  the  fourth 
Monday  in  February  and  the  second  Monday  in  November;  for  the 
San  Antonio  division,  at  San  Antonio  on  the  first  IMonday  in  May 
and  the  third  Monday  in  December;  for  the  El  Paso  division,  at 
El  Paso  on  the  first  Monday  in  April  and  the  first  Monday  in 
October;  and  for  the  Del  Rio  division,  at  Del  Rio  on  the  third 
Monday  in  March  and  the  fourth  Monday  in  October.  The  clerk 
of  the  court  for  the  western  district  shall  maintain  an  office  in 
charge  of  himself  or  a  deputy  at  Austin,  at  El  Paso,  and  at  Del 
Rio,  which  shall  be  kept  open  at  all  times  for  the  transaction  of 
business.  The  southern  district  shall  include  the  territory  em- 
braced on  the  first  of  July,  nineteen  hundred  and  ten,  in  the  coun- 
ties of  Duval,  La  Salle,  McMullen,  Nueces,  Webb,  and  Zapata, 
which  shall  constitute  the  Laredo  division;  also  the  territory'  em- 
braced on  the  date  last  mentioned  in  the  counties  of  Cameron, 
Hidalgo,  and  Starr,  which  shall  constitute  the  Brownsville  divi- 
sion ;  also  the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Austin,  Brazoria,  Chambers,  Galveston,  Fort  Bend, 
Matagorda,  and  Wharton,  which  shall  constitute  the  Galveston 
division ;  also  the  territory  embraced  on  the  date  last  mentioned, 
in  the  counties  of  Brazos,  Colorado,  Fayette,  Grimes,  Harris,  La- 
vaca, Madison,  Montgomery,  Polk,  San  Jacinto,  Trinity,  Walker, 
and  Waller,  which  shall  constitute  the  Houston  division;  also  the 
territory  embraced  on  the  date  last  mentioned,  in  the  counties  of 
Bee,  Calhoun,  Dewitt,  Goliad,  Jackson,  Live  Oak,  Refugio,  Aransas, 
San  Pajricio,  and  Victoria,  which  shall  constitute  the  Victoria 
division.  Terms  of  the  district  court  for  the  Galveston  division 
shall  be  held  at  Galveston  on  the  second  Monday  in  January  and 
the  first  Monday  in  June ;  for  the  Houston  division,  at  Houston  on 
the  fourth  Mondays  in  February  and  September;  for  the  Laredo 
division,  at  Laredo  on  the  third  Monday  in  April  and  the  second 
Monday  in  November ;  for  the  Brownsville  division,  at  Brownsville 
on  the  second  IMonday  in  May  and  the  first  IMonday  in  December; 
and  for  the  Victoria  division,  at  Victoria  on  the  first  Monday  in 
May  and  the  fourth  IMonday  in  November.  The  clerk  of  the  court 
Wheaton  C.  F.  P.— 33 


514  Appendix 

for  the  southern  district  shall  maintain  an  office  in  charge  of 
himself  or  a  deputy  at  each  of  the  places  now  designated  for 
holding  court  in  said  district. 

By  Act  of  May  29,  1912,  c  144  (37  Stat.  L.  120),  it  was  provided  "That  the 
counties  of  Bee,  Live  Oak,  Arkansas,  San  Patricio,  Nueces,  Jim  Wells,  Duval, 
Brooks,  and  Willacy  shall  constitute  a  division  of  the  southern  judicial  district 
of  Texas,  also  that  the  terms  of  the  district  court  for  the  southern  district  of 
Texas  shall  be  held  twice  a  year  at  Corpus  Christi  at  times  to  be  fixed  by 
the  judge  of  the  court. ' ' 

By  Act  of  Feb.  5,  1913,  c.  28  (37  Stat.  L.  663),  it  was  provided  "That  the 
counties  of  Keeves,  Ward,  Martin,  Eeagan,  Winkler,  Ector,  Gaines,  Andrews, 
Upton,  Midland,  Loving,  Jeff  Davis,  and  Crane  shall  constitute  a  division  of 
the  western  judicial  district  of  Texas,  and  that  terms  of  the  disti*ict  court  for 
the  western  district  shall  be  held  twice  a  year  at  Pecos  at  times  to  be  fixed  by 
the  judge. ' ' 

By  the  Act  of  Feb.  26,  1917,  c.  122  (39  Stat.  L.  939),  an  additional  di\asion 
in  the  northern  judicial  district  of  Texas  was  provided  for,  consisting  of  the 
counties  of  Archer,  Baylor,  Clay,  Cottle,  Foard,  Montague,  King,  Knox, 
Wichita,  Wilbarger  and  Young.  The  terms  of  this  court  are  to  be  held  at 
Wichita  Falls  on  the  fourth  Monday  in  March  and  the  third  Monday  in 
November. 

The  Act  of  March  16,  1919,  c.  87  (40  Stat.  L.  1270),  it  was  provided  that 
there  should  be  terms  of  court  at  Amarillo,  Texas,  on  the  third  Monday  in 
April  and  the  second  Monday  in  September. 

§  109.  The  state  of  Utah  shall  constitute  one  judicial  district,  to 
be  known  as  the  district  of  Utah.  It  is  divided  int6  two  divisions, 
to  be  known  as  the  northern  and  central  divisions.  The  northern 
division  shall  include  the  territory  embraced  on  the  first  day  of 
July,  nineteen  hundi-ed  and  ten,  in  the  counties  of  Boxelder,  Cache, 
Davis,  Morgan,  Rich,  and  Weber.  The  central  division  shall  in- 
clude the  territory  embraced  on  the  date  last  mentioned  in  the 
counties  of  Beaver,  Carbon,  Emery,  Garfield,  Grand,  Iron,  Juab, 
Kane,  Millard,  Piute,  Salt  Lake,  San  Juan,  San  Pete,  Sevier, 
Summit,  Tooele,  Uinta,  Utah,  Wasatch,  Washington,  and  Wayne. 
Terms  of  the  disti'ii-t  court  for  the  northern  division  shall  be  held 
at  Ogden  on  the  second  j\Ioiidays  in  IMarch  and  September;  and 
for  the  central  division,  at  Salt  Lake  City  on  the  second  Mondays 
in  April  and  Xovciiibcr.  The  clerk  of  the  court  for  said  district 
shall  maintain  an  ollice  in  charge  of  himself  or  a  deputy  at  each 
of  tiie  places  where  the  court  is  now  required  to  be  held  in  the 
disti'ict. 

§110.  The  state  of  Vennoiit  sh;ill  coiistitiite  one  judicial  dis- 
Irirt,  ti»  he  known  as  tiie  dislrict  ol'  N'mnoni .     'i'ei'ins  ol'  the  disti'iet 


TiiE  Judicial  Code  515 

court  shall  be  held  at  Burliiigtoji  on  the  fourth  Tuesday  in  Feb- 
ruary ;  at  Windsor  on  the  third  Tuesday  in  May ;  and  at  Rutland 
on  the  first  Tuesday  in  October,  and  at  Brattleboro  on  the  third 
Tuesday  in  December.  In  each  year  one  of  the  stated  terms  of  the 
district  court  may,  when  adjourned,  be  adjourned  to  meet  at 
]\Iontpelier,  and  one  at  Newport :  Provided,  however,  That  suit- 
able rooms  and  accommodations  shall  be  furnished  for  the  holdings 
of  said  court  and  for  the  use  of  the  officers  of  said  court  at  I-5rattle- 
boro  free  of  expense  to  the  Government  of  the  United  States  until 
the  public  building  provided  for  by  Act  of  Congress  shall  be 
erected. 

Amended  by  the  Act  of  Feb.  1,  1912,  c.  26   (.'37  Stat.  L.  58). 

§  111.  The  state  of  Virginia  is  divided  into  two  districts,  to  be 
known  as  the  eastern  and  western  districts  of  Virginia.  The  east- 
ern district  shall  include  the  territory  embraced  on  the  first  day 
of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Accomac, 
Alexandria,  Amelia,  Brunswick,  Caroline,  Charles  City,  Chester- 
field, Culpeper,  Dinwiddle,  Elizabeth  City,  Essex,  Fairfax,  Fau- 
quier, Gloucester,  Goochland,  Greensville,  Hanover,  Henrico,  Isle 
of  Wight,  James  City,  King  and  Queen,  King  George,  King 
William,  Lancaster,  Loudoun,  Louisa,  Lunenburg,  Mathews,  ]\Ieck- 
lenburg,  Middlesex,  Nansemond,  New  Kent,  Norfolk,  Northampton, 
Northumberland,  Nottoway,  Orange,  Powhatan,  Prince  Edward, 
Prince  George,  Prince  William,  Princess  Anne,  Richmond,  South- 
ampton, Spottsylvania,  Stafford,  Surry,  Sussex,  Warwick,  West- 
moreland, and  York.  Terms  of  the  district  court  shall  be  held  at 
Richmond  on  the  first  Mondays  in  April  and  October;  at  Norfolk 
on  the  first  IVlondays  in  May  and  November ;  and  at  Alexandria,  on 
the  first  Mondays  in  January  and  July.  The  western  district  shall 
include  the  territory  embraced  on  the  first  day  of  July,  nineteen 
hundred  and  ten,  in  the  counties  of  Alleghany,  Albemarle,  Am- 
herst, Appomattox,  Augusta,  Bath,  Bedford,  Bland,  Botetourt, 
Buchanan,  Buckingham,  Campbell,  Carroll,  Charlotte,  Clarke, 
Craig,  Cumberland,  Dickenson,  Floyd,  Fluvanna,  Franldin,  Fred- 
erick, Giles,  Grayson,  Greene,  Halifax,  Henry,  Highland,  Lee, 
Madison,  Montgomery,  Nelson,  Page,  Patrick,  Pulaski,  Pittsylvania, 
Rappahannock,  Roanoke,  Rockridge,  Rockingham,  Russell,  Scott, 
Shenandoah,  Smyth,  Tazewell,  Warren,  Washington,  Wise,  and 
Wythe.  Terms  of  the  district  court  shall  be  held  at  Lynchburg 
on  the  second  Mondays  in  January  and  July ;  at  Roanoke  on  the 
second  IMonday  in  Februarv  and  the  first  Mondav  in  August ;  at 


516  Appendix 

Danville  on  the  second  Monday  in  March  and  the  third  Monday  in 
September ;  at  Charlottesville,  on  the  second  Mondays  in  April  and 
November;  at  Harrisonburg  on  the  fourth  Mondays  in  April  and 
November ;  at  Big  Stone  Gap  on  the  third  Monday  in  May  and  the 
second  Monday  in  October;  and  at  Abingdon  on  the  second  Mon- 
days in  June  and  December. 

The  clerk  of  the  court  for  the  western  district  shall  maintain  an 
office  in  charge  of  himself  or  a  deputy  at  Lynchburg,  Roanoke, 
Danville,  Charlottesville,  Harrisonburg,  Big  Stone  Gap,  and 
Abingdon,  which  shall  be  kept  open  at  all  times  for  the  transaction 
of  the  business  of  the  court. 
Amended  by  the  Act  of  June  13,  1918,  e.  99  (40  Stat.  L.  605-606). 

§  112.  The  state  of  Washington  is  divided  into  two  districts,  to 
be  known  as  the  eastern  and  western  districts  of  Washington.  The 
eastern  district  shall  include  the  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Spokane, 
Stevens,  Ferry,  Okanogan,  Chelan,  Grant,  Douglas,  Lincoln,  and 
Adams,  w'ith  the  waters  thereof,  including  all  Indian  reservations 
within  said  counties,  which  shall  constitute  the  northern  division ; 
also  the  territory  embraced  on  the  date  last  mentioned  in  the  coun- 
ties of  Asotin,  Garfield,  Whitman,  Columbia,  Franldin,  Walla 
Walla,  Benton,  Klickitat,  Kittitas,  and  Yakima,  with  the  waters 
thereof,  including  all  Indian  reservations  within  said  counties, 
which  shall  constitute  the  southern  division  of  said  district. 
Terms  of  the  district  court  for  the  northern  division  shall  be  held 
at  Spokane  on  the  first  Tuesdays  in  April  and  September;  for  the 
southern  division,  at  Walla  Walla  on  the  first  Tuesdays  in  June 
and  December,  and  at  North  Yakima  on  the  first  Tuesdays  in  May 
and  October.  The  western  district  shall  include  the  territory  em- 
braced on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the 
counties  of  Whatcom,  Skagit,  Snohomish,  King,  San  Juan,  Island, 
Kitsap,  Clallam,  and  Jcft'erson,  with  the  Avaters  thereof,  including 
all  Indian  reservations  within  said  counties,  which  shall  constitute 
the  northern  division;  also  Ihe  territory  embraced  on  the  date  last 
mentioned  in  the  counties  of  Pierce,  Mason,  Thurston,  Chehalis, 
Pacific,  Lewis,  Wahkiakum,  Cowlitz,  Clarke,  and  Skamania,  Avith 
the  waters  thereof,  including  all  Indian  reservations  witliin  said 
counties,  wliich  sliall  constilulc  tlic  southern  division  of  said  dis- 
trict. T<Tnis  of  the  disti-ict  court  for  the  northern  division  shall 
})('  held  at  licllinghani  on  the  first  Tuesdays  in  Ai)iil  and  October; 
at  Scalfic  (III  thf  first  Tuesdays  in  I\iii\-  and  November;  and  for  the 


The  Judicial  Code  '  517 

southern  division,  at  Tacoma  on  the  first  Tuesdays  in  February 
and  July.  The  clerks  of  courts  for  the  eastern  and  western  dis- 
tricts shall  maintain  an  office  in  charge  of  himself  or  a  deputy  at 
each  place  in  their  respective  districts  where  terms  of  court  are 
now  required  to  be  held. 

§  113.  The  state  of  West  Virginia  is  divided  into  two  districts, 
to  be  known  as  the  northern  and  southern  districts  of  West  Vir- 
ginia, The  northern  district  shall  include  the  territory  embraced 
on  the  first  day  of  July,  nineteen  hundred  and  ten,  in  the  counties 
of  Hancock,  Brooke,  Ohio,  Marshall,  Tyler,  Pleasants,  Wood,  Wirt, 
Ritchie,  Doddridge,  Wetzel,  Monongalia,  Marion,  Harrison,  Lewis, 
Gilmer,  Calhoun,  Upshur,  Barbour,  Taylor,  Preston,  Tucker,  Ran- 
dolph,, Pendleton,  Hardy,  Grant,  Mineral,  Hampshire,  Morgan, 
Berkeley  and  Jefferson,  with  the  waters  thereof.  Terms  of  the 
district  court  for  the  northern  district  shall  be  held  at  Martinsburg, 
the  first  Tuesday  of  April  and  the  third  Tuesday  of  September; 
at  Clarksburg,  the  second  Tuesday  of  April  and  the  first  Tuesday 
of  October;  at  Wheeling,  the  first  Tuesday  of  May  and  the  third 
Tuesday  of  October;  at  Philippi,  the  fourth  Tuesday  of  May  and 
second  Tuesday  of  November;  at  Elkins  on  the  first  Tuesday  in 
July  and  the  first  Tuesday  in  December ;  and  at  Parkersburg,  the 
second  Tuesday  of  January  and  second  Tuesday  of  June:  Pro- 
vided, That  a  place  for  holding  court  at  Philippi  shall  be  furnished 
the  Government  free  of  cost  by  Barbour  County  until  other  pro- 
vision is  made  therefor  by  law.  The  southern  district  shall  include 
the  territory  embraced  on  the  first  day  of  July,  nineteen  hundred 
and  ten,  in  the  cQunties  of  Jackson,  Roane,  Clay,  Braxton,  Webster, 
Nicholas,  Pocahontas,  Greenbrier,  Fayette,  Boone,  Kanawha,  Put- 
nam, Mason,  Cabell,  Wayne,  Lincoln,  Logan,  Mingo,  Raleigh, 
Wyoming,  McDowell,  Mercer,  Summers  and  Monroe,  with  the 
waters  thereof.  Terms  of  the  district  court  for  the  southern  dis- 
trict shall  be  held  at  Charleston  on  the  first  Tuesday  of  June  and 
the  third  Tuesday  of  November ;  at  Huntington,  on  the  first  Tues- 
day of  April  and  the  first  Tuesday  after  the  third  Monday  of 
September ;  at  Bluefield  on  the  first  Tuesday  of  May  and  the  third 
Tuesday  of  October ;  at  Williamson  on  the  first  Tuesday  of  October  ; 
at  Webster  Springs  on  the  first  Tuesday  of  September;  and  at 
Lewisburg  on  the  second  Tuesday  of  July :  Provided,  That  a  place 
for  holding  court  at  Webster  Springs  shall  be  furnished  free  of 
cost  to  the  United  States:  And  provided  further,  That  a  place  for 
holding  court  at  Williamson  shall  be  furnished  free  of  cost  to  the 


518  Appendix 

United  States  by  IMingo   County   until  t)ther  provision   in  made 
therefor  by  law. 

Amended  by  the  Acts  of  March  23,  1912,  c.  63  (37  Stat.  L.  76),  and  Aug.  22, 
1914,   c.  265    (38  Stat.  L.   702). 

§  114.  The  state  of  Wisconsin  is  divided  into  two  districts,  to  be 
known  as  the  eastern  and  Avestern  districts  of  Wisconsin.  The 
eastern  district  shall  include  the  territory  embraced  on  the  first 
day  of  July,  nineteen  hundred  and  ten,  in  the  counties  of  Brown, 
Calumet,  Dodge,  Door,  Florence,  Fond  du  Lac,  Forest,  Green  Lake, 
Kenosha,  Kewaunee,  Langlade,  Manitowoc,  Marinette,  Marquette, 
Milwaukee,  Oconto,  Outagamie,  Ozaukee,  Racine,  Shawano,  She- 
boygan, Walworth,  Washington,  W^aukesha,  Waupaca,  Waushara 
and  Winnebago,  Terms  of  the  district  court  for  said  district  shall 
be  held  at  Milwaukee  on  the  first  Mondays  in  January  and  October : 
at  Oshkosh  on  the  second  Tuesday  in  June;  and  at  Green  Bay  on 
the  first  Tuesday  in  April.  The  western  district  shall  include  the 
territory  embraced  on  the  first  day  of  July,  nineteen  hundred  and 
ten,  in  the  counties  of  Adams,  Ashland,  Barron,  Bayfield,  Buffalo, 
Burnett,  Chippewa,  Clark,  Columbia,  Crawford,  Dane,  Dunn, 
Douglas,  Eau  Claire,  Grant,  Green,  Iowa,  Iron,  Jackson,  Jefferson, 
Juneau,  La  Crosse,  Lafayette,  Lincoln,  Marathon,  Monroe,  Oneida, 
Pepin,  Pierce,  Polk,  Portage,  Price,  Richland,  Rock,  Rusk,  Saint 
Croix,  Sauk  Sawyer,  Taylor,  Trempealeau,  Vernon,  Vilas,  Wash- 
burn and  Wood.  Terms  of  the  district  court  for  said  district  shall 
be  held  at  Madison  on  the  first  Tuesday  in  December ;  at  Eau 
Claire  on  the  first  Tuesday  in  June ;  at  La  Crosse  on  the  third 
Tuesday  in  September ;  and  at  Superior  on  the  fourth  Tuesday  in 
Januarj^  and  the  second  Tuesday  in  July.  The  district  court  for 
each  of  said  districts  shall  be  open  at  all  times  for  the  purpose  of 
hearing  and  deciding  causes  of  admiralty  and  maritime  jurisdiction, 
so  far  as  the  same  can  be  done  without  a  jury.  The  clerk  of  the 
court  for  the  western  district  shall  maintain  an  office  in  charge  of 
himself  or  a  deputy  at  Madison,  at  La  Crosse,  and  at  Superior,  which 
sliall  be  kept  open  at  all  times  for  the  transaction  of  the  business  of 
the  court.  The  marshal  for  the  western  district  shall  appoint  a 
deputy  marshal  who  shall  reside  and  keep  his  ofificc  at  Superior. 
All  writs  and  other  process,  except  criminal  Avarrants,  issued  at 
Superior,  may  be  made  returnable  at  Superior;  and  the  clerk  at 
lliat  place  shall  keep  in  his  office  the  original  records  of  all  actions, 
prosecutions  and  special  proceedings  so  commenced  and  pending 
therein.     Criminal  warrants  may  be  returned  at  any  place  within 


The  Judicial  Code  519 

the  district  wliere  court  is  held.  Wlieiiever  warrants  issued  at 
Superior  shall  be  returned  at  any  other  place,  the  clerk  of  the 
court  wherein  the  warrant  is  returned  shall  certify  the  same,  under 
the  seal  of  the  court,  together  with  the  plea  and  other  proceedings 
had  thereon,  and  the  determination  of  the  court  upon  such  plea  or 
proceedings,  with  all  papers  and  orders  filed  in  reference  thereto, 
to  the  clerk  of  the  court  at  Superior;  and  the  clerk  at  Superior 
shall  enter  upon  his  records  a  minute  of  the  proceedings  had  upon 
the  return  of  said  warrant,  certified  as  aforesaid.  All  causes  and 
proceedings  instituted  in  the  court  at  Superior  shall  be  tried 
therein,  unless  by  consent  of  the  parties,  or  upon  the  order  of  the 
court,  they  are  transferred  to  another  place  for  trial. 

§  115.  The  state  of  Wyoming  and  the  Yellowstone  National 
Park  shall  constitute  one  judicial  district,  to  be  known  as  the  dis- 
trict of  Wyoming.  Terms  of  the  district  court  for  said  district 
shall  be  held  at  Cheyenne  on  the  second  Mondays  in  May  and 
November;  at  Evanston  on  the  second  Tuesday  in  July;  and  at 
Lander  on  the  first  Monday  in  October ;  and  the  said  court  shall 
hold  one  session  annually  at  Sheridan,  and  in  said  national  park, 
on  such  dates  as  the  court  may  order.  The  marshal  and  clerk  of 
the  said  court  shall  each,  respectively,  appoint  at  least  one  deputy 
to  reside  at  Evanston,  and  one  to  reside  at  Lander,  unless  he  him- 
self shall  reside  there,  and  shall  also  maintain  an  office  at  each  of 
those  places :  Provided,  That  until  a  public  building  is  provided 
at  Lander,  suitable  accommodations  for  holding  court  in  said  town 
shall  be  furnished  the  Government  at  an  expense  not  to  exceed 
three  hundred  dollars  annually.  The  marshal  of  the  United  States 
for  the  said  district  may  appoint  one  or  more  deputy  marshals  for 
the  Yellowstone  National  Park,  w^ho  shall  reside  in  said  park. 


CHAPTER  VI 

CIRCUIT  COUETS  OF  APPEALS 

§  116.  Circuits. 

fi  117.  Circuit  courts  of  appeals. 

§  118.  Circuit   judges. 

§  119.  Allotment  of  justices  to  the  circuits. 

§  120.  Chief  justice  and  associate  justices  of  supreme  court,  and  district  judges, 

may  sit  in  circuit  court  of  appeals. 
§  121.  Justices  allotted  to  circuits,  how  designated. 


^520  Appendix 

§  122.  Seals,  forms  of  process,  and  rules, 

§  123.  Marshals. 

§  124.  Clerks. 

§  125.  Deputy  clerks — Appointment  and  removal. 

§  126.  Terms, 

§  127,  Rooms  for  court,  how  provided. 

§  128.  Jurisdiction — When  judgment  final. 

§  129.  Appeals  in  proceedings  for  injunctions  and  receivers. 

§  130.  Appellate  and  supervisory  jurisdiction  under  the  bankrupt  act. 

§  131.  Appeals  from  the  United  States  court  for  China. 

§  132.  Allowance  of  appeals,  etc. 

§  133.  Writs  of  error  and  appeals  from  the  supreme  courts  of  Arizona  and 

New  Mexico. 
§  134.  Writs   of  error   and   aj^peals  from   district  court   for  Alaska  to   circuit 

court  of  appeals  for  ninth  circuit — Court  may  certify  questions  to  the 

supreme  court. 
§  135.  Appeals  and  writs  of  error  from  Alaska — Where  heard. 

§  116.  There  shall  be  nine  judicial  circuits  of  the  United  States, 
constituted  as  follows: 

First.  The  first  circuit  shall  include  the  districts  of  Rhode 
Island,  Massachusetts,  New  Hampshire,  Maine  and  Porto  Rico. 

Second.  The  second  circuit  shall  include  the  districts  of  Ver- 
mont, Connecticut  and  New  York. 

Third.  The  third  circuit  shall  include  the  districts  of  Pennsyl- 
vania, New  Jersey  and  Delaware. 

Fourth.  The  fourth  circuit  shall  include  the  districts  of  Mary- 
land, Virginia,  West  Virginia,  North  Carolina  and  South  Carolina. 

Fifth.  The  fifth  circuit  shall  include  the  districts  of  Georgia, 
Florida,  Alabama,  ]\Iississippi,  Louisiana  and  Texas. 

Sixth.  The  sixth  circuit  shall  include  the  districts  of  Ohio, 
Michigan,  Kentucky  and  Tennessee. 

Seventh.  The  seventh  circuit  shall  include  the  districts  of  In- 
diana, Illinois  and  Wisconsin. 

Eighth.  The  eighth  circuit  shall  include  the  districts  of  Ne- 
braska, IMinnesota,  Iowa,  ]\Iissouri,  Kansas,  Arkansas,  Colorado, 
Wyoming,  North  Dakota,  South  Dakota,  Utah  and  Oklahoma. 

Ninth.  The  ninth  circuit  shall  include  the  districts  of  California, 
Oregon,  Nevada,  Washington,  Idaho,  Montana  and  Hawaii. 

Porto  liifo  was  added  to  the  first  circuit  l)y  tlio  Act  of  Jan.  28,  1915,  c.  22 
(38  Stat.  L.  803). 

By  the  Act  of  June  20,  1910,  c.  310  (3G  Stat.  L.  557,  505,  573).  New 
Mexico  was  addc<i  to  the  eighth  circuit  and  Arizona  to  the  ninth  circuit. 

§117.  There  .shall  be  in  eacli  circuit  a  (nrcuit  court  of  appeals, 
wliicli  sliall  consist  of  tlucc  judges,  of  whom  two  shall  constitute 


The  Judicial  Code  521 

a  quorum,  and  wliieli  sliall  l)e  a  court  of  record,  with  appellate 
jurisdiction,  as  hereinafter  limited  and  established. 

§  118.  There  shall  be  in  the  second,  seventh  and  eighth  circuits, 
respectively,  four  circuit  judges ;  in  the  fourth  circuit,  two  circuit 
judges;  and  in  each  of  the  otlier  circuits,  three  circuit  judges,  to 
be  appointed  by  the  President,  by  and  with  the  advice  and  consent 
of  the  Senate.  They  shall  be  entitled  to  receive  a  salary  of  $8,500 
a  year,  each,  payable  monthly.  Each  circuit  judge  shall  reside 
wdthin  his  circuit.  The  circuit  judges  in  each  circuit  shall  be 
judges  of  the  circuit  court  of  appeals  in  that  circuit,  and  it  shall 
be  the  duty  of  each  circuit  judge  in  each  circuit  to  sit  as  one  of 
the  judges  of  the  circuit  court  of  appeals  in  that  circuit  from  time 
to  time  according  to  law:  Provided,  That  nothing  in  this  section 
shall  be  construed  to  prevent  any  circuit  judge  holding  district 
court  or  otherwise,  as  provided  for  and  authorized  in  other  sections 

of  this  Act. 

Amended  by  the  Acts  of  Jan.  13,  1912,  c.  9  (37  Stat.  L.  52),  and  Feb.  25, 
1919,  c.  29  (40  Stat.  L.  1157). 

§  119.  The  chief  justice  and  associate  justices  of  the  supreme 
court  shall  be  allotted  among  the  circuits  by  an  order  of  the  court, 
and  a  new  allotment  shall  be  made  whenever  it  becomes  necessary 
or  convenient  by  reason  of  the  alteration  of  any  circuit,  or  of  the 
new  appointment  of  a  chief  justice  or  associate  justice,  or  other- 
wise. If  a  new  allotment  becomes  necessary  at  any  other  time  than 
during  a  term,  it  shall  be  made  by  the  chief  justice,  and  shall  be 
binding  until  the  next  term  and  until  a  new  allotment  by  the  court. 
Whenever,  by  reason  of  death  or  resignation,  no  justice  is  allotted 
to  a  circuit,  the  chief  justice  may,  until  a  justice  is  regularly 
allotted  thereto,  temporarily  assign  a  justice  of  another  circuit  to 
such  circuit. 

§  120.  The  chief  justice  and  the  associate  justices  of  the  su- 
preme court  assigned  to  each  circuit,  and  the  several  district 
judges  within  each  circuit,  shall  be  competent  to  sit  as  judges  of 
the  circuit  court  of  appeals  within  their  respective  circuits.  In 
case  the  chief  justice  or  an  associate  justice  of  the  supreme  court 
shall  attend  at  any  session  of  the  circuit  court  of  appeals,  he  shall 
preside.  In  the  absence  of  such  chief  justice,  or  associate  justice, 
the  circuit  judges  in  attendance  upon  the  court  shall  preside  in  the 
order  of  the  seniority  of  their  respective  commissions.    In  case  the 


522  Appendix 

full  court  at  any  time  shall  not  be  made  up  by  the  attendance  of 
the  chief  justice  or  the  associate  justice,  and  the  circuit  judges,  one 
or  more  district  judges  within  the  circuit  shall  sit  in  the  court 
according  to  such  order  or  provision  among  the  district  judges  as 
either  by  general  or  particular  assignment  shall  be  designated  by 
the  court:  Provided,  That  no  judge  before  AAhom  a  cause  or  ques- 
tion may  have  been  tried  or  heard  in  a  district  court,  or  existing 
circuit  court,  shall  sit  on  the  trial  or  hearing  of  such  cause  or 
question  in  the  circuit  court  of  appeals. 

§121.  The  words  "circuit  justice"  and  "justice  of  a  circuit," 
when  used  in  this  title,  shall  be  understood  to  designate  the  justice 
of  the  supreme  court  who  is  allotted  to  any  circuit ;  but  the  word 
"judge,"  when  applied  generally  to  any  circuit,  shall  be  under- 
stood to  include  such  justice. 

§  122.  Each  of  said  circuit  courts  of  appeals  shall  prescribe  the 
form  and  style  of  its  seal,  and  the  form  of  writs  and  other  process 
and  procedure  as  may  be  conformable  to  the  exercise  of  its  juris- 
diction ;  and  shall  have  power  to  establish  all  rules  and  regulations 
for  the  conduct  of  the  business  of  the  court  within  its  jurisdiction 
as  conferred  by  law. 

§  123.  The  United  States  marshals  in  and  for  the  several  dis- 
tricts of  said  courts  shall  be  the  marshals  of  said  circuit  courts  of 
appeals,  and  shall  exercise  the  same  powers  and  perform  the  same 
duties,  under  the  regulations  of  the  court,  as  are  exercised  and 
perfoi;med  by  the  marshal  of  the  Supreme  Court  of  the  United 
States,  so  far  as  the  same  may  be  applicable. 

§  124.  Each  court  shall  appoint  a  clerk,  who  shall  exercise  the 
same  powers  and  ])erform  the  same  duties  in  regard  to  all  matters 
within  its  jurisdiction,  as  are  exercised  and  performed  by  the  clerk 
of  the  supreme  court,  so  far  as  the  same  may  be  applicable. 

§  125.  The  clerk  of  tlie  circuit  court  of  appeals  for  each  circuit 
may,  with  the  approval  of  the  court,  appoint  such  number  of 
deputy  clerks  as  llic  <()inl  may  deem  necessary.  Such  deputies 
may  he  removed  ;it  llie  |)I('iis]ii-e  of  tlie  clerk  appointing  them,  with 
the  approval  of  llic  ((miiI.  In  liisc  dj'  Hie  death  of  the  clerk  liis 
depiily  or  deputies  shall,  unless  I'emoved  by  the  court,  continue  in 
ofDce  and  perff)nn  the  duties  of  the  c1erl<  in  his  name  until  a  clerk 


The  Judicial  Code  523 

is  appointed  and  has  qnalilioJ  ;  and  for  the  defanlts  or  misfeasances 
in  office  of  any  such  deputy,  wliether  in  the  lifetime  of  the  elerk  or 
after  his  dealh,  the  clerk  and  his  estate  and  Ihe  sureties  on  his 
official  bond  shall  he  liable,  and  his  executor  or  administrator  shall 
have  such  remedy  for  such  defaults  or  misfeasances  committed  after 
his  death  as  the  clerk  would  be  entitled  to  if  the  same  had  occurred 
in  his  lifetime. 

§  126.  A  term  shall  be  held  annually  by  the  circuit  courts  of  ap- 
peals in  the  several  judicial  circuits  at  the  following  places,  and 
at  such  times  as  may  be  fixed  by  said  courts,  respectively:  In  the 
first  circuit,  in  Boston;  in  the  second  circuit,  in  New  York;  in  the 
third  circuit,  in  Philadelphia;  in  the  fourth  circuit,  in  Richmond; 
in  the  fifth  circuit,  in  New  Orleans,  Atlanta,  Fort  Worth  and  Mont- 
gomery ;  in  the  sixth  circuit,  in  Cincinnati ;  in  the  seventh  circuit, 
in  Chicago ;  in  the  eighth  circuit,  in  Saint  Louis,  Denver  or  Chey- 
enne, and  Saint  Paul ;  in  the  ninth  circuit,  in  San.  Francisco,  and 
each  year  in  two  other  places  in  said  circuit  to  be  designated  by 
the  judges  of  said  court ;  and  in  each  of  the  above  circuits,  terms 
may  be  held  at  such  other  times  and  in  such  other  places  as  said 
courts,  respectively,  may  from  time  to  time  designate :  Provided, 
That  terms  shall  be  held  in  Atlanta  on  the  first  Monday  in  October, 
in  Fort  Worth  on  the  first  ]\Ionday  in  November,  in  Montgomery 
on  the  third  Monday  in  October,  in  Denver  or  in  Cheyenne  on  the 
first  Monday  in  September,  and  in  Saint  Paul  on  the  first  IMonday 
in  May.  All  appeals,  writs  of  error,  and  other  appellate  proceed- 
ings which  may  be  taken  or  prosecuted  from  the  district  courts  of 
the  United  States  in  the  state  of  Georgia,  in  the  state  of  Texas  and 
in  the  state  of  Alabama,  to  the  circuit  court  of  appeals  for  the 
fifth  judicial  circuit  shall  be  heard  and  disposed  of,  respectively,  by 
said  court  at  the  terms  liekl  in  At'anta,  in  Fort  Worth,  and  in 
Montgomery,  except  that  appeals  or  w'rits  of  error  in  cases  of  in- 
junctions and  in  all  other  cases  which,  under  the  statutes  and  rules, 
or  in  the  opinion  of  the  court,  are  entitled  to  be  brought  to  a  speedy 
hearing  may  be  heard  and  disposed  of  wherever  said  court  may 
be  sitting.  All  appeals,  writs  of  errors,  and  other  appellate  pro- 
ceedings which  may  hereafter  be  taken  or  prosecuted  from  the 
District  Court  of  the  United  States  at  Beaumont,  Texas,  to  the 
circuit  court  of  appeals  for  the  fifth  circuit,  shall  be  heard  and 
disposed  of  by  the  said  circuit  court  of  appeals  at  the  terms  of 
court  held  at  New  Orleans:  Provided,  That  nothing  herein  shall 
prevent  the  court  from  hearing  appeals  or  writs  of  error  wherever 


524  Appendix 

the  said  courts  shall  sit,  in  cases  of  injunctions  and  in  all  other 
cases  which,  under  the  statutes  and  the  rules,  or  in  the  opinion  of 
the  court,  are  entitled  to  be  brought  to  a  speedy  hearing.  All 
appeals,  -writs  of  error,  and  other  appellate  proceedings  which  may 
be  taken  or  prosecuted  from  .the  District  Courts  of  the  United 
States  in  the  states  of  Colorado,  Utah  and  Wyoming,  and  the  Su- 
preme Court  of  the  territory  of  New  Mexico  to  the  circuit  court 
of  appeals  for  the  eighth  judicial  circuit,  shall  be  heard  and  dis- 
posed of  by  said  court  at  the  terms  held  either  in  Denver  or  in 
Cheyenne,  except  that  any  case  arising  in  any  of  said  states  or 
territory  may,  by  consent  of  all  the  parties,  be  heard  and  disposed 
of  at  a  term  of  said  court  other  than  the  one  held  in  Denver  or 

Cheyenne. 

By  the  Act  of  July  17,  1916,  c.  246  (39  Stat.  L.  385),  it  was  provided  that 
a  term  of  the  Circuit  Court  of  Appeals  for  the  Fourth  Circuit  should  be  held 
at  Asheville,  North  Carolina,  annually  at  a  time  fixed  by  the  judges  of  said 
court. 

§  127.  The  marshals  for  the  several  districts  in  which  said  cir- 
cuit courts  of  appeals  may  be  held  shall,  under  the  direction  of 
the  attorney  general,  and  with  his  approval,  provide  such  rooms 
in  the  public  buildings  of  the  United  States  as  may  be  necessary 
for  the  business  of  said  courts,  and  pay  all  incidental  expenses  of 
said  court,  including  criers,  bailiffs  and  messengers:  Provided, 
That  in  case  proper  rooms  can  not  be  provided  in  such  buildings, 
then  the  marshals,  with  the  approval  of  the  attornej^  general,  may, 
from  time  to  time,  lease  such  rooms  as  may  be  necessary  for  such 
courts. 

§  128.  The  circuit  courts  of  appeals  shall  exercise  appellate 
jurisdiction  to  review  by  appeal  or  writ  of  error  final  decisions  in 
the  district  courts,  including  the  United  States  District  Court  for 
Hawaii,  and  the  United  States  District  Court  for  Porto  Rico,  in  all 
eases  other  than  those  in  which  appeals  and  writs  of  error  may  be 
taken  direct  to  the  supreme  court,  as  provided  in  section  two 
liundrcd  and  thirty-eight,  unless  otherwise  provided  by  law;  and, 
except  as  provided  in  sections  two  hundred  and  thirty-nine  and 
two  hundred  and  forty,  the  judgments  and  decrees  of  the  circuit 
courts  of  aj)i)('als  shall  be  final  in  all  cases  in  which  the  jurisdiction 
is  dependent  entirely  upon  the  opposite  parties  to  the  .suit  or 
controversy  being  aliens  and  citizens  of  the  Ignited  States,  or  citi- 
zens of  di(Tei-eii1  states;  also  in  all  cases  arising  nndei-  the  i)atent 
law^,  under  the  tiiidc  ni.irk  laws,  nnder  the  coiiyright   laws,  under 


TiiE  Judicial  CodiI  ,    525 

the  revomie  laws,  and  muler  the  criniiiial  laws,  and  in  admiralty 
cases. 
Amended  l>y  tlio  Act  of  Jan.  28,  1915,  c.  22  (;58  SUt.  L.  8'J.3). 

§  129.  Where  upon  a  hearing  in  equity  in  a  district  court,  or  by 
a  judge  thereof  in  vacation,  an  injunction  shall  be  granted,  con- 
tinued, refused  or  dissolved  by  an  interlocutory  order  or  decree, 
or  an  application  to  dissolve  an  injunction  shall  be  refused,  or 
an  interlocutory  order  or  decree  shall  be  made  appointing  a  re- 
ceiver, an  appeal  may  be  taken  from  such  interlocutory  order  or 
decree  granting,  continuing,  refusing,  dissolving  or  refusing  to 
dissolve  an  injunction,  or  appointing  a  receiver,  to  the  circuit  court 
of  appeals,  notwithstanding  an  appeal  in  such  case  might,  upon 
final  decree  under  the  statutes  regulating  the  same,  be  taken  di- 
rectly to  the  supreme  court:  Provided,  That  the  appeal  must  be 
taken  within  thirty  days  from  the  entry  of  such  order  or  decree, 
and  it  shall  take  precedence  in  the  appellate  court ;  and  the  pro- 
ceedings in  other  respects  in  the  court  below  shall  not  be  stayed 
unless  otherwise  ordered  by  that  court,  or  the  appellate  court,  or 
a  judge  thereof,  during  the  pendency  of  such  appeal :  Provided, 
hoivever,  That  the  court  below  may,  in  its  discretion,  require  as  a 
condition  of  the  appeal  an  additional  bond. 

§  130.  The  circuit  courts  of  appeals  shall  have  the  appellate  and 
supervisory  jurisdiction  conferred  upon  them  by  the  act  entitled 
"An  Act  to  establish  a  uniform  system  of  bankruptcy  throughout 
the  United  States,"  approved  July  first,  eighteen  hundred  and 
ninety-eight,  and  all  laws  amendatory  thereof,  and  shall  exercise 
the  same  in  the  manner  therein  prescribed. 

§  131.  The  circuit  court  of  appeals  for  the  ninth  district  is  em- 
powered to  hear  and  determine  writs  of  error  and  appeals  from 
the  United  States  court  for  China,  is  provided  in  the  act  entitled 
"An  Act  creating  a  United  States  court  for  China  and  prescribing 
the  jurisdiction  thereof,"  approved  June  thirtieth,  nineteen  hun- 
dred and  six. 

§  132.  Any  judge  of  a  circuit  court  of  appeals,  in  respect  of 
cases  brought  or  to  be  brought  before  that  court,  shall  have  the 
same  powers  and  duties  as  to  allowances  of  appeals  and  writs  of 
error,  and  the  conditions  of  such  allowances,  as  by  law  belong  to 
the  justices  or  judges  in  respect  of  other  courts  of  the  United 
States,  respectively. 


526  Appendix 

§  133.  The  circuit  courts  of  appeals,  in  cases  in  which  their 
judgments  and  decrees  are  made  final  by  this  title,  shall  have 
appellate  jurisdiction,  by  Avrit  of  error  or  appeal,  to  review  the 
judgments,  orders  and  decrees  of  the  supreme  courts  of  Arizona 
and  New  Mexico,  as  by  this  title  they  may  have  to  review  the  judg- 
ments, orders  and  decrees  of  the  district  courts ;  and  for  that 
purpose  said  territories  shall,  by  orders  of  the  Supreme  Court  of 
the  United  States,  to  be  made  from  time  to  time,  be  assigned  to 
particular  circuits. 

Superseded  by  the  Act  of  June  20,  1910,  c.  310  (36  Stat.  L.  557,  565,  576). 

§  134.  In  all  cases  other  than  those  in  which  a  writ  of  error  or 
appeal  will  lie  direct  to  the  Supreme  Court  of  the  United  States 
as  provided  in  section  two  hundred  and  forty-seven,  in  which  the 
amount  involved  or  the  value  of  the  subject-matter  in  controversy 
shall  exceed  five  hundred  dollars,  and  in  all  criminal  cases,  writs 
of  error  and  appeals  shall  lie  from  the  District  Court  for  Alaska 
or  from  any  division  thereof,  to  the  circuit  court  of  appeals  for 
the  ninth  circuit,  and  the  judgments,  orders  and  decrees  of  said 
court  shall  be  final  in  all  such  cases.  But  whenever  such  circuit 
court  of  appeals  may  desire  the  instruction  of  the  Supreme  Court 
of  the  United  States  upon  any  question  or  proposition  of  law 
which  shall  have  arisen  in  any  such  case,  the  court  may  certify 
such  question  or  proposition  to  the  supreme  court,  and  thereupon 
the  supreme  court  shall  give  its  instruction  upon  the  question  or 
proposition  certified  to  it,  and  its  instructions  shall  be  binding 
upon  the  circuit  court  of  appeals. 

§  135.  All  appeals,  and  writs  of  error,  and  other  cases,  coming 
from  the  district  court  for  the  district  of  Alaska  to  the  circuit  couri 
of  appeals  for  the  ninth  circuit,  shall  be  entered  upon  the  docke^^ 
and  heard  at  San  Francisco,  California,  or  at  Portland,  Oregon, 
or  at  Seattle,  "Washington,  as  the  trial  court  before  whom  the  case 
was  tried  below  shall  fix  and  determine :  Provided,  That  at  any 
time  before  the  hearing  of  any  appeal,  writ  of  error,  or  other  case, 
the  parties  thereto,  through  their  respective  attorneys,  may  stipu- 
bite  at  which  of  the  above-named  places  the  same  shall  be  heard,  in 
wliich  cjisc  tli(>  case  sluill  be  remitted  to  and  entered  upon  the 
docket  at  llie  place  so  .stipulated  and  shall  be  heard  there. 


The  Judicial  Code  527 

CHAPTER  VII 

THE  COURT   OF   CLAIMS 

§  136.  Appointment,  oath,  and  salary  of  judges. 

S  137.  Seal. 

§  138.  Session — Quorum. 

§  139.  Officers  of  the  court. 

§  140.  Salaries  of  officers. 

§  141.  Clerk  's  bond. 

§  142.  Contingent  fund. 

§  143.  Reports  to  Congress — Copies  for  departments,  etc. 

§  144.  Members  of  congress  not  to  practice  in  the  court. 

§  145.  Jurisdiction. 

Par.  1.  Claims  against  the  United  States. 

2.  Set-offs. 

3.  Disbursing  officers. 

§  146.  Judgments  for  set-off  of  counterclaims — How  enforced. 

§  147.  Decree  on  accounts  of  disbursing  officers. 

§  148.  Claims  referred  by  departments. 

§  149.  Procedure  in  cases  transmitted  by  departments. 

§  150.  Judgments  in  cases  transmitted  by  departments — How  paid. 

§  151.  Either  house  of  congress  may  refer  certain  claims  to  court. 

§  152.  Costs  may  be  allowed  prevailing  party. 

§  153.  Claims  growing  out  of  treaties  not  cognizable  therein. 

§  154.  Claims  pending  in  other  courts. 

§  155.  Aliens. 

§  156.  All  claims  to  be  filed  within  six  years — Exceptions. 

§  157.  Rules  of  practice — May  punish  contempts. 

§  158.  Oaths  and  acknowledgments. 

§  159.  Petitions  and  verification. 

§  160.  Petition  dismissed,  when. 

§  161.  Burden  of  proof  and  evidence  as  to  loyalty. 

§  162.  Claims  for  proceeds  arising  from  sales  of  abandoned  property. 

§  163.  Commissioners  to  take  testimony. 

§  164.  Power  to  call  upon  departments  for  information. 

§  165.  When  testimony  not  to  be  taken. 

§  166.  Examination  of  claimant. 

§  167.  Testimony — Where  taken. 

§  168.  Witnesses  before  commissioners. 

§  169.  Cross-examinations. 

§  170.  Witnesses — How  sworn. 

§  171.  Fees  of  commissioners,  by  whom  paid. 

§  172.  Claims  forfeited  for  fraud. 

§  173.  Claims  under  act  of  June  16,  1874. 

§  174.  New  trial  on  motion  of  claimant. 

8  175.  New  trial  on  motion  of  United  States. 

S  176.  Cost  of  printing  record. 

§  177.  No  interest  on  claims. 


528  Appendix 

§  178.  Effect  of  payment  of  judgment. 

§  179.  Final  judgments  a  bar. 

§  180.  Debtors  to  the  United  States  may  have  amount  due  ascertained. 

§  181.  Appeals. 

§  182.  Appeals  in  Indian  cases. 

§  183.  Attorney  general 's  report  to  congress. 

§  184.  Loyalty  a  jurisdictional  fact  in  certain  cases. 

§  185.  Attorney  general  to  appear  for  the  defense. 

§  186.  Persons  not  to  be  excluded  as  witnesses  on  account  of  color  or  because 

of  interest — Plaintiff  may  be  witness  for  government. 
§  187.  Eeports  of  court  to  congress. 

§  136.  The  court  of  claims,  established  by  the  Act  of  February 
twenty-fourth,  eighteen  hundred  and  fifty-five,  shall  be  continued. 
It  shall  consist  of  a  chief  justice  and  four  judges,  who  shall  be 
appointed  by  the  President,  by  and  with  the  advice  and  consent 
of  the  Senate,  and  hold  their  offices  during  good  behavior.  Each 
of  them  shall  take  an  oath  to  support  the  Constitution  of  the 
United  States,  and  to  discharge  faithfully  the  duties  of  his  office. 
The  chief  justice  shall  be  entitled  to  receive  an  annual  salary  of 
$8,000,  and  each  of  the  other  judges  an  annual  salary  of  $7,500, 
payable  monthly  from  the  treasury. 
Amended  by  the  Act  of  Feb.  25,  1919,  c.  29  (40  Stat.  L.  1157). 

§  137.  The  court  of  claims  shall  have  a  seal,  with  such  device  as 
it  may  order. 

§  138.  The  court  of  claims  shall  hold  one  annual  session  at  the 
city  of  Washington,  beginning  on  the  first  Monday  in  December 
and  continuing  as  long  as  may  be  necessary  for  the  prompt  dis- 
position of  the  business  of  the  court.  Any  three  of  the  judges  of 
.said  court  shall  constitute  a  quorum,  and  may  hold  a  court  for 
the  transaction  of  business:  Provided,  That  the  concurrence  of 
three  judges  shall  be  necessary  to  the  decision  of  any  case. 

§  139.  The  said  court  shall  appoint  a  chief  clerk,  an  assistant 
clerk,  if  deemed  necessary,  a  bailiff,  and  a  chief  messenger.  The 
clerks  shall  take  an  oath  for  the  faithful  dischai'ge  of  their  duties, 
and  shall  be  uiulci-  llic  diit'clion  of  the  court  in  the  ]ierformance 
llici-fof;  jiiul  foi- niiscoiidiicl  or  iiicjip.icily  lluy  may  \n'  removed  by 
it  from  oflicc ;  but  the  court  shall  report  such  removals,  with  the 
causf  llicrcof.  to  Congress,  if  in  session,  or  if  not.  at  the  next 
fJCKsion.  The  bailifl'  sh;ill  hold  his  office  foi-  a  lei-m  of  four  years, 
unless  soonci-  i-cnio\cfl  hv  Ihc  court  for  cause. 


The  Judicial  Code  529 

§  140.  The  salary  of  the  chief  clerk  shall  be  three  thousand  five 
hundred  dollars  a  year;  of  the  assistant  clerk  two  thousand  five 
hundred  dollars  a  year;  of  the  bailiff  one  thousand  five  hundred 
dollars  a  yeai",  and  of  the  chief  messenger  one  thousand  dollars  a 
year,  payable  monthly  from  the  treasury. 

§  141.  The  chief  clerk  shall  give  bond  to  the  United  States  in 
such  amount,  in  such  form,  and  with  such  security  as  shall  be  ap- 
proved by  the  secretary  of  the  treasury. 

§  142.  The  said  clerk  shall  have  authority  when  he  has  given 
bond  as  provided  in  the  preceding  section,  to  disburse,  under  the 
direction  of  the  court,  the  contingent  fund  which  may  from  time 
to  time  be  appropriated  for  its  use ;  and  his  accounts  shall  be 
settled  by  the  proper  accounting  officers  of  the  treasury  in  the 
same  way  as  the  accounts  of  other  disbursing  agents  of  the  Govern- 
ment are  settled. 

§  143.  On  the  first  day  of  every  regular  session  of  Congress,  the 
clerk  of  the  court  of  claims  shall  transmit  to  Congress  a  full  and 
complete  statement  of  all  the  judgments  rendered  by  the  court 
during  the  previous  year,  stating  the  amounts  thereof  and  the 
parties  in  whose  favor  they  were  rendered,  together  with  a  brief 
synopsis  of  the  nature  of  the  claims  upon  which  they  were  ren- 
dered. At  the  end  of  every  term  of  the  court  he  shall  transmit  a 
copy  of  its  decisions  to  the  heads  of  departments ;  to  the  solicitor, 
the  comptroller,  and  the  auditors  of  the  Treasury ;  to  the  com- 
missioner of  the  General  Land  Office  and  of  Indian  Affairs ;  to  the 
chiefs  of  bureaus,  and  to  other  officers  charged  with  the  adjust- 
ment of  claims  against  the  United  States. 

§  144.  Whoever,  being  elected  or  appointed  a  senator,  member 
of,  or  delegate  to  Congress,  or  a  resident  commissioner,  shall,  after 
his  election  or  appointment,  and  either  before  or  after  he  has 
qualified,  and  during  his  continuance  in  office,  practice  in  the  court 
of  claims,  shall  be  fined  not  more  than  ten  thousand  dollars  and 
imprisoned  not  more  than  two  years ;  and  shall,  moreover,  there- 
after be  incapable  of  holding  any  office  of  honor,  trust  or  profit 
under  the  Government  of  the  United  States. 

§  145.  The  court  of  claims  shall  have  jurisdiction  to  hear  and 
determine  the  following  matters: 
Wheaton  C.  F.  P.— 34 


530  Appendix 

First.  All  claims  (except  for  pensions)  founded  upon  the  Con- 
stitution of  the  United  States  or  any  law  of  Congress,  upon  any 
regulation  of  an  executive  department,  upon  any  contract,  express 
or  implied,  with  the  Government  of  the  United  States,  or  for  dam- 
ages, liquidated  or  unliquidated,  in  cases  not  sounding  in  tort,  in 
respect  of  which  claims  the  party  would  be  entitled  to  redress 
against  the  United  States  either  in  a  court  of  law,  equity,  or  ad- 
miralty if  the  United  States  were  suable :  Provided,  however,  That 
nothing  in  this  section  shall  be  construed  as  giving  to  the  said 
court  jurisdiction  to  hear  and  determine  claims  growing  out  of 
the  late  civil  war,  and  commonly  known  as  "war  claims,"  or  to 
hear  and  determine  other  claims,  which  prior  to  March  third, 
eighteen  hundred  and  eighty-seven,  had  been  rejected  or  reported 
on  adversely  by  any  court,  department,  or  commission  authorized 
to  hear  and  determine  the  same. 

Second.  All  set-offs,  counterclaims,  claims  for  damages,  whether 
liquidated  or  unliquidated,  or  other  demands  whatsoever  on  the 
part  of  the  Government  of  the  United  States  against  any  claimant 
against  the  Government  in  said  court :  Provided,  That  no  suit 
against  the  Government  of  the  United  States,  brought  by  any 
officer  of  the  United  States  to  recover  fees  for  services  alleged  to 
have  been  performed  for  the  United  States,  shall  be  allowed  under 
this  chapter  until  an  account  for  said  fees  shall  have  been  rendered 
and  finally  acted  upon  as  required  by  law,  unless  the  proper  ac- 
counting officer  of  the  Treasury  fails  to  act  finally  thereon  within 
six  months  after  the  account  is  received  in  said  office. 

Third.  The  claim  of  any  paymaster,  quartermaster,  commissary 
of  subsistence,  or  other  disbursing  officer  of  the  United  States,  or 
of  his  administrators  or  executors,  for  relief  from  responsibility 
on  account  of  loss  by  capture  or  otherwise,  while  in  the  line  of  his 
duty,  of  Government  funds,  vouchers,  records,  or  papers  in  his 
charge,  and  for  which  such  officer  was  and  is  held  responsible. 

The  following  provision  is  made  by  the  Act  of  March  4,  1915, 
c.  140  (38  Stat.  L.  996)  : 

From  and  after  the  passage  and  approval  of  this  act  the  jurisdiction  of  the 
Court  of  Claims  shall  not  extend  to  or  include  any  claim  against  the  United 
States  based  upon  or  growing  out  of  the  destruction  of  any  property  or  damage 
done  to  any  property  by  the  military  or  naval  forces  of  the  United  States 
during  the  War  for  the  suppression  of  the  rel)cllion;  nor  to  any  claim  for  stores 
and  flUf)i>lios  tnkon  by  or  furnislu-d  to  or  for  the  use  of  the  military  or  naval 
forces  of  the  United  States,  nor  to  any  claim  for  the  value  of  any  use  and 
occupation  of  any  real  estate  by  the  military  or  naval  forces  of  the  United 
Statf'H  during  said  War;  nor  shall  said  Court  of  Claims  have  jurisdiction  of  any 
claim  which  is  now  liarn-d  liy  the  provision  of  any  law  of  the  United  States. 


The  Judicial  Code  531 

§  146.  Upon  the  trial  of  any  cause  in  which  any  set-off,  counter- 
claim, claim  for  damaj^es,  or  other  demand  is  set  up  on  the  part  of 
the  Government  against  any  person  making  claim  against  the 
Government  in  said  court,  the  court  shall  hear  and  determine  such 
claim  or  demand  both  for  and  against  the  Government  and  claiin- 
ant;  and  if  upon  the  whole  case  it  finds  that  the  claimant  is  in- 
debted to  the  Government  it  shall  render  judgment  to  that  effect, 
and  such  judgment  shall  be  final,  with  the  right  of  appeal,  as  in 
other  cases  provided  for  by  law.  Any  transcript  of  such  judg- 
ment, filed  in  the  clerk's  office  of  any  district  court,  shall  be  en- 
tered upon  the  records  thereof,  and  shall  thereby  become  and  be 
a  judgment  of  such  court  and  be  enforced  as  other  judgments  in 
such  court  are  enforced. 

§  147.  Whenever  the  court  of  claims  ascertains  the  facts  of  any 
loss  by  any  paymaster,  quartermaster,  commissary  of  subsistence, 
or  other  disbursing  officer,  in  the  cases  hereinbefore  provided,  to 
have  been  without  fault  or  negligence  on  the  part  of  such  officer, 
it  shall  make  a  decree  setting  forth  the  amount  thereof,  and  upon 
such  decree  the  proper  accounting  officers  of  the  Treasury  shall 
allow  to  such  officer  the  amount  so  decreed  as  a  credit  in  the 
settlement  of  his  accounts. 

§  148.  When  any  claim  or  matter  is  pending  in  any  of  the  execu- 
tive departments  which  involves  controverted  questions  of  fact  or 
law,  the  head  of  such  department  may  transmit  the  same,  with  the 
vouchers,  papers,  documents  and  proofs  pertaining  thereto,  to  the 
court  of  claims  and  the  same  shall  be  there  proceeded  in  under 
such  rules  as  the  court  may  adopt.  When  the  facts  and  conclu- 
sions of  law  shall  have  been  found,  the  court  shall  report  its  find- 
ings to  the  department  by  which  it  was  transmitted  for  its  guidance 
and  action :  Provided,  however,  That  if  it  shall  have  been  trans- 
mitted with  the  consent  of  the  claimant,  or  if  it  shall  appear  to 
the  satisfaction  of  the  court  upon  the  facts  established,  that  under 
existing  laws  or  the  provisions  of  this  chapter  it  has  jurisdiction 
to  render  judgment  or  decree  thereon,  it  shall  proceed  to  do  so,  in 
the  latter  case  giving  to  either  party  such  further  opportunity  for 
hearing  as  in  its  judgment  justice  shall  require,  and  shall  report 
its  findings  therein  to  the  department  by  which  the  same  was  re- 
ferred to  said  court.  The  secretary  of  the  Treasury  may,  upon 
the  certificate  of  any  auditor,  or  of  the  comptroller  of  the  Treasury, 
direct  any  claim  or  matter,  of  which,  by  reason  of  the  subject 


532  Appendix 

matter  or  character,  the  said  court  might  under  existing  laws,  take 
jurisdiction  on  the  voluntary  action  of  the  claimant,  to  be  trans- 
mitted, with  all  the  vouchers,  papers,  documents  and  proofs  per- 
taining thereto,  to  the  said  court  for  trial  and  adjudication. 

§  149.  All  cases  transmitted  by  the  head  of  any  department,  or 
upon  the  certificate  of  any  auditor,  or  of  the  comptroller  of  the 
Treasury,  according  to  the  provisions  of  the  preceding  section,  shall 
be  proceeded  in  as  other  cases  pending  in  the  court  of  claims,  and 
shall,  in  all  respects,  be  subject  to  the  same  rules  and  regulations. 

§  150.  The  amount  of  any  final  judgment  or  decree  rendered  in 
favor  of  the  claimant,  in  any  case  transmitted  to  the  court  of 
claims  under  the  two  preceding  sections,  shall  be  paid  out  of  any 
specific  appropriation  applicable  to  the  case,  if  any  such  there  be ; 
and  where  no  such  appropriation  exists,  the  judgment  or  decree 
shall  be  paid  in  the  same  manner  as  other  judgments  of  the  said 
court. 

§  151.  Whenever  any  bill,  except  for  a  pension,  is  pending  in 
either  House  of  Congress  providing  for  the  payment  of  a  claim 
against  the  United  States,  legal  or  equitable,  or  for  a  grant,  gift 
or  bounty  to  any  person,  the  House  in  which  such  bill  is  pending 
may,  for  the  investigation  and  determination  of  facts,  refer  the 
same  to  the  court  of  claims,  which  shall  proceed  with  the  same  in 
accordance  with  such  rules  as  it  may  adopt  and  report  to  such 
House  the  facts  in  the  case  and  the  amount,  where  the  same  can 
be  liquidated,  including  any  facts  bearing  upon  the  question 
whether  there  has  been  delay  or  laches  in  presenting  such  claim 
or  applying  for  such  grant,  gift,  or  bounty,  and  any  facts  bearing 
upon  the  question  whotlier  the  bar  of  any  statute  of  limitation 
should  be  removed  or  wliich  shall  be  claimed  to  excuse  the  claimant 
for  not  having  resorted  to  any  establislied  legal  remedy,  together 
with  such  conclusions  as  shall  be  sufficient  to  inform  Congress  of 
the  nature  and  character  of  the  demand,  either  as  a  claim,  legal  or 
cquilable,  or  as  a  gratuity  against  the  TTnitod  States,  and  the 
aiiiount.  if  any,  legally  or  equitably  due  from  the  United  States  to 
the  cljiliii.-int :  Provided,  however,  'V\\:\\  if  it  shall  appear  to  the 
satisfaction  of  tlie  court  upon  the  facts  csta1)1isliod  that  under  ex- 
isting laws  or  the  provisions  of  this  chapter,  the  subject  nifitter  of 
the  bill  is  such  that  it  lias  jurisdiction  to  render  judgment  or 
decree  lliereon.  it  sli;ill  proceed  to  do  so,  giving  to  cithei-  party  such 


The  Judicial  Code  533 

further  opportunity  for  liearing  as  in  its  judgment  justice  shall 
require,  and  it  shall  report  its  proceedings  therein  to  the  House  of 
Congress  by  which  the  same  was  referred  to  said  court. 

§  152.  If  the  Government  of  the  United  States  shall  put  in  issue 
the  right  of  the  plaintiff  to  recover,  the  court  may,  in  its  discretion, 
allow  costs  to  the  prevailing  party  from  the  time  of  joining  such 
issue.  Such  costs,  however,  shall  include  only  what  is  actually 
incurred  for  witnesses,  and  for  summoning  the  same,  and  fees  paid 
to  the  clerk  of  the  court. 

§  153.  The  jurisdiction  of  the  said  court  shall  not  extend  to  any 
claim  against  the  Government  not  pending  therein  on  December 
first,  eighteen  hundred  and  sixty-two,  growing  out  of  or  dependent 
on  any  treaty  stipulation  entered  into  with  foreign  nations  or  with 
the  Indian  tribes. 

See  the  Act  of  March  3,  1919,  c.  103  (40  Stat.  L.  1316-1317),  which  confers 
jurisdiction  on  the  Court  of  Claims  to  hear  certain  claims  of  the  Cherokee 
Nation  against  the  United  States. 

§  154.  No  person  shall  file  or  prosecute  in  the  court  of  claims, 
or  in  the  supreme  court  on  appeal  therefrom,  any  claim  for  or  in 
respect  to  which  he  or  any  assignee  of  his  has  pending  in  any  other 
court  any  suit  or  process  against  any  person  who,  at  the  time 
when  the  cause  of  action  alleged  in  such  suit  or  process  arose,  was, 
in  respect  thereto,  acting  or  professing  to  act,  mediately  or  im- 
mediately, under  the  authority  of  the  United  States. 

§  155.  Aliens  who  are  citizens  or  subjects  of  any  government 
which  accords  to  citizens  of  the  United  States  the  right  to  prosecute 
claims  against  such  government  in  its  courts,  shall  have  the  priv- 
ilege of  prosecuting  claims  against  the  United  States  in. the  court 
of  claims,  whereof  such  court,  by  reason  of  their  subject  matter 
and  character,  might  take  jurisdiction. 

§  156.  Every  claim  against  the  United  States  cognizable  by  the 
court  of  claims,  shall  be  forever  barred  unless  the  petition  setting 
forth  a  statement  thereof  is  filed  in  the  court,  or  transmitted  to  it 
by  the  secretary  of  the  Senate  or  the  clerk  of  the  House  of  Repre- 
sentatives, as  provided  by  law,  within  six  years  after  the  claim  first 
accrues :  Provided,  That  the  claims  of  married  women,  first  ac- 
crued during  marriage,  of  persons  under  the  age  of  twenty-one 


534  Appendix 

years,  first  accrued  during  minority,  and  of  idiots,  lunatics,  insane 
persons,  and  persons  beyond  the  seas  at  the  time  the  claim  accinied, 
entitled  to  the  claim,  shall  not  be  barred  if  the  petition  be  filed  in 
the  court  or  transmitted,  as  aforesaid,  within  three  years  after  the 
disability  has  ceased ;  but  no  other  disability  than  those  enumerated 
shall  prevent  any  claim  from  beiiig  barred,  nor  shall  any  of  the 
said  disabilities  operate  cumulatively. 

§  157.  The  said  court  shall  have  power  to  establish  rules  for  its 
government  and  for  the  regulation  of  practice  therein,  and  it  may 
punish  for  contempt  in  the  manner  prescribed  by  the  common  law, 
may  appoint  commissioners,  and  may  exercise  such  powers  as  are 
necessary  to  carry  into  effect  the  powers  granted  to  it  by  law. 

§  158.  The  judges  and  clerks  of  said  court  may  administer  oaths 
and  affirmations,  take  acknowledgments  of  instruments  in  writing, 
and  give  certificates  of  the  same. 

§  159.  The  claimant  shall  in  all  cases  fully  set  forth  in  his  peti- 
tion the  claim,  the  action  thereon  in  Congress  or  by  any  of  the 
departments,  if  such  action  has  been  had,  what  persons  are  owners 
thereof  or  interested  therein,  when  and  upon  what  consideration 
such  persons  became  so  interested ;  that  no  Assignment  or  transfer 
of  said  claim  or  of  any  part  thereof  or  interest  therein  has  been 
made,  except  as  stated  in  the  petition ;  that  said  claimant  is  justly 
entitled  to  the  amount  therein  claimed  from  the  United  States  after 
allowing  all  just  credits  and  offsets ;  that  the  claimant  and,  where 
the  claim  has  been  assigned,  the  original  and  every  prior  owner 
thereof,  if  a  citizen,  has  at  all  times  borne  true  allegiance  to  the 
Government  of  the  United  States,  and,  whether  a  citizen  or  not, 
has  not  in  any  way  voluntarily  aided,  abetted,  or  given  encour- 
agement to  rebellion  against  the  said  Government,  and  that  he 
believes  the  facts  as  stated  in  the  said  petition  to  be  true.  The 
said  petition  shall  be  verified  by  the  affidavit  of  the  claimant,  his 
agent  or  attorney. 

§  160.  The  said  allegations  as  to  true  allegiance  and  voluntary 
aiding,  abctliiig,  or  giving  encouragement  to  rebellion  against  the  , 
Government  may  be  traversed  l)y  the  Government,  and  if  on  the 
trial  such  issues  sliall  he  decided  agjiinst  the  clainianl,  his  petition 
shall  be  dismissed. 


The  Judicial  Code  53o 

§  161.  Whenever  it  is  material  in  any  claim  to  ascertain  whether 
any  person  did  or  did  not  give  any  aid  or  comfort  to  forces  or 
government  of  the  late  Confederate  states  during  the  civil  war, 
the  claimant  asserting  the  loyalty  of  any  such  person  to  the  United 
States  during  such  civil  war  shall  be  required  to  prove  affirma- 
tively that  such  person  did,  during  said  civil  war,  consistently 
adhere  to  the  United  States  and  did  give  no  aid  or  comfort  to  per- 
sons engaged  in  said  Confederate  service  in  said  civil  war. 

§  162.  The  court  of  claims  shall  have  jurisdiction  to  hear  and 
determine  the  claims  of  those  whose  property  was  taken  subse- 
quent to  June  the  first,  eighteen  hundred  and  sixty-five,  under 
the  provisions  of  the  Act  of  Congress  approved  March  twelfth, 
eighteen  hundred  and  sixty-three,  entitled  "An  Act  to  provide  for 
the  collection  of  abandoned  property  and  for  the  prevention  of 
frauds  in  insurrectionary  districts  within  the  United  States," 
and  acts  amendatory  thereof  where  the  property  so  taken  was  sold 
and  the  net  proceeds  thereof  were  placed  in  the  Treasury  of  the 
United  States;  and  the  secretary  of  the  Treasury  shall  return 
said  net  proceeds  to  the  owners  thereof,  on  the  judgment  of  said 
court,  and  full  jurisdiction  is  given  to  said  court  to  adjudge  said 
claims,  any  statutes  of  limitations  to  the  contrary  notwithstand- 
ing. 

§  163.  The  court  of  claims  shall  have  power  to  appoint  commis- 
sioners to  take  testimony  to  be  used  in  the  investigation  of  claims 
which  come  before  it,  to  prescribe  the  fees  which  they  shall  receive 
for  their  services,  and  to  issue  commissions  for  the  taking  of  such 
testimony,  whether  taken  at  the  instance  of  the  claimant  or  of  the 
United  States. 

§  164.  The  said  court  shall  have  power  to  call  upon  any  of  the 
departments  for  any  information  or  papers  it  may  deem  neces- 
sary, and  shall  have  the. use  of  all  recorded  and  printed  reports 
made  by  the  committees  of  each  House  of  Congress,  when  deemed 
necessary  in  the  prosecution  of  its  business.  But  the  head  of  any 
department  may  refuse  and  omit  to  comply  with  any  call  for  in- 
formation or  papers  when,  in  his  opinion,  such  compliance  would 
be  injurious  to  the  public  interest. 

§  165.  When  it  appears  to  the  court  in  any  case  that  the  facts 
set  forth  in  the  petition  of  the  claimant  do  not  furnish  any  ground 


536  Appendix 

for   relief,   it   shall   not   authorize   the   taking   of   any   testimony 
therein. 

§  166.  The  court  may,  at  the  instance  of  the  attorney  or  solicitor 
appearing  in  behalf  of  the  United  States,  make  an  order  in  any 
case  pending  therein,  directing  any  claimant  in  such  case  to  ap- 
pear, upon  reasonable  notice,  before  any  commissioner  of  the  court 
and  be  examined  on  oath  touching  any  or  all  matters  pertaining 
to  said  claim.  Such  examination  shall  be  reduced  to  writing  by 
the  said  commissioner,  and  be  returned  to  and  filed  in  the  court, 
and  may,  at  the  discretion  of  the  attorney  or  solicitor  of  the 
United  States  appearing  in  the  case,  be  read  and  used  as  evidence 
on  the  trial  thereof.  And  if  any  claimant,  after  such  ord.r  is 
made  and  due  and  reasonable  notice  thereof  is  given  to  him,  fails 
to  appear,  or  refuses  to  testify  or  answer  fully  as  to  all  matters 
within  his  know'ledge  material  to  the  issue,  the  court  may,  in  its 
discretion,  order  that  the  said  cause  shall  not  be  brought  forward 
for  trial  until  he  shall  have  fully  complied  with  the  order  of  the 
court  in  the  premises. 

§  167.  The  testimony  in  cases  pending  before  the  court  of  claims 
shall  be  taken  in  the  county  where  the  witness  resides,  when  the 
same  can  be  conveniently  done. 

§  168.  The  court  of  claims  may  issue  subpoenas  to  require  the 
attendance  of  witnesses  in  order  to  be  examined  before  any  per- 
son commissioned  to  take  testimony  therein.  Such  subpoenas  shall 
have  the  same  force  as  if  issued  from  a  district  court,  and  com- 
pliance therewith  shall  be  compelled  under  such  rules  and  orders 
as  the  court  shall  establish. 

§  169.  In  taking  testimony  to  be  used  in  support  of  any  claim, 
opportunity  sluill  be  given  to  tiie  Unit(>d  States  to  file  interroga- 
tories, or  by  attorney  to  exaiuinc  witnesses,  under  such  regulations 
as  said  conrl  sJuill  prescribe;  and  like  opportunity  shall  be  af- 
forded tlie  claimant,  in  cases  where  testimony  is  taken  on  behalf 
of  the  rnitcd  States,  under  like  regulations. 

§170.  Tlic  commissioner  taking  testimony  to  be  used  in  the 
court  of  claims  shall  adminisier  an  (latli  or  affirmation  to  the  wit- 
nesses ]ii-f)n''lit  before  him  lor  examinal  ion. 


The  Judicial  Code  537 

§  171.  When  testimony  is  taken  for  the  claimant,  the  fees  of  the 
commissioner  hefore  whom  it  is  taken,  and  the  cost  of  the  com- 
mission and  notice,  shall  be  paid  by  such  claimant ;  and  when  it  is 
taken  at  the  instance  of  the  Government,  such  fees  shall  be  paid 
out  of  the  contingent  fund  provided  for  the  court  of  claims,  or 
other  appropriation  made  by  Congress  for  that  purpose. 

§  172.  Any  person  who  corruptly  practices  or  attempts  to  prac- 
tice any  fraud  against  the  United  States  in  the  proof,  statement, 
establishment  or  allowance  of  any  claim  or  of  any  part  of  any 
claim  against  the  United  States  shall,  ipso  facto,  forfeit  the  same 
to  the  Government ;  and  it  shall  be  the  duty  of  the  court  of  claims, 
in  such  cases,  to  find  specifically  that  such  fraud  was  practiced  or 
attempted  to  be  practiced,  and  thereupon  to  give  judgment  that 
such  claim  is  forfeited  to  the  Government,  and  that  the  claimant 
be  forever  barred  from  prosecuting  the  same. 

§  173.  No  claim  shall  be  allowed  by  the  accounting  officers  un- 
der the  provisions  of  the  Act  of  Congress  approved  June  sixteenth, 
eighteen  hundred  and  seventy-four,  or  by  the  court  of  claims,  or 
by  Congress,  to  any  person  where  such  claimant,  or  those  under 
whom  he  claims,  shall  willfully,  knowingly,  and  with  intent  to 
defraud  the  United  States,  have  claimed  more  than  was  justly 
due  in  respect  of  such  claim,  or  presented  any  false  evidence  to 
Congress,  or  to  any  department  or  court,  in  support  thereof. 

§  174.  When  judgment  is  rendered  against  any  claimant,  the 
court  may  grant  a  new  trial  for  any  reason  which,  by  the  rules  of 
common  law  or  chancery  in  suits  between  individuals,  would  fur- 
nish sufficient  ground  for  granting  a  new  trial. 

§  175.  The  court  of  claims,  at  any  time  while  any  claim  is  pend- 
ing before  it,  or  on  appeal  from  it,  or  within  two  years  next  after 
the  final  disposition  of  such  claim,  may,  on  motion,  on  behalf  of 
the  United  States,  grant  a  new  trial  and  stay  the  payment  of  any 
judgment  therein,  upon  such  evidence,  cumulative  or  otherwise,  as 
shall  satisfy  the  court  that  any  fraud,  wrong  or  injustice  in  the 
premises  has  been  done  to  the  United  States;  but  until  an  order 
is  made  staying  the  payment  of  a  judgment,  the  same  shall  be 
payable  and  paid  as  now  provided  by  law. 

§  176.  There  shall  be  taxed  against  the  losing  party  in  each  and 
every  cause  pending  in  the  court  of  claims  the  cost  of  printing 


538  Appendix 

the  record  in  such  case,  which  sliall  be  collected,  except  when  the 
judgment  is  against  the  United  States,  by  the  clerk  of  said  court 
and  paid  into  the  Treasury  of  the  United  States. 

§  177.  No  interest  shall  be  allowed  on  an}^  claim  up  to  the  time 
of  the  rendition  of  judgment  thereon  by  the  court  of  claims,  un- 
less upon  a  contract  expressly  stipulating  for  the  payment  of 
interest. 

§  178.  The  paj^'ment  of  the  amount  due  by  any  judgment  of  the 
court  of  claims,  and  of  any  interest  thereon  allowed  by  law,  as 
provided  by  law,  shall  be  a  full  discharge  to  the  United  States  of 
all  claim  and  demand  touching  any  of  the  matters  involved  in  the 
controversy. 

§179.  Any  final  judgment  against  the  claimant  on  any  claim 
prosecuted  as  provided  in  this  chapter  shall  forever  bar  any  fur- 
ther claim  or  demand  against  the  United  States  arising  out  of  the 
matters  involved  in  the  controversy. 

§  180.  Whenever  any  person  shall  present  his  petition  to  the 
court  of  claims  alleging  that  he  is  or  has  been  indebted  to  the 
United  States  as  an  officer  or  agent  thereof,  or  by  virtue  of  any 
contract  therewith,  or  that  he  is  the  guarantor,  or  surety,  or  per- 
sonal representative  of  any  officer  or  agent  or  contractor  so  indebt- 
ed, or  that  he  or  the  person  for  whom  he  is  such  surety,  guarantor, 
or  personal  representative  has  held  any  office  or  agency  under  the 
United  States,  or  entered  into  any  contract  therewith,  under  whicli 
it  may  be  or  has  been  claimed  that  an  indebtedness  to  the  United 
States  has  arisen  and  exists,  and  that  he  or  the  person  he  represents 
has  applied  to  the  proper  department  of  the  Government  requesting 
that  the  account  of  such  office,  agency,  or  indebtedness  may  be 
adjusted  and  settled,  and  tliat  three  years  have  elapsed  from  the 
date  of  such  application,  and  said  account  still  remains  unsettled 
and  unadjusted,  and  that  no  suit  upon  the  same  has  been  brought 
by  the  United  States,  said  court  shall,  due  notice  first  being  given 
to  the  head  of  said  department  aiul  lo  the  attorney  general  of  the 
United  States,  proceed  to  heai-  the  parties  and  to  ascertain  the 
amount,  if  any,  due  llie  United  States  on  said  account.  The  attor- 
ney general  shall  icpresent  the  United  States  at  the  hearing  of 
said  cause.  The  court  may  postpone  the  same  from  time  to  time 
whenever  ju.stice  sluill  require.     The  judgment  of  said  court  or  of 


The  Judicial  Code  539 

the  Supreme  Court  of  the  United  States,  to  which  an  appeal  shall 
lie,  as  in  other  cases,  as  to  the  amount  due,  shall  be  binding  and 
conclusive  upon  the  parties.  The  payment  of  such  amount  so 
found  due  by  the  court  shall  discharge  such  obligation.  An  action 
shall  accrue  to  the  United  States  against  such  principal,  or  surety, 
or  representative  to  recover  the  amount  so  found  due,  which  may 
be  brought  at  any  time  within  three  years  after  the  final  judgment 
of  said  court ;  and  unless  suit  shall  be  brought  within  said  time, 
such  claim  and  the  claim  on  the  original  indebtedness  shall  be 
forever  barred.  The  provisions  of  section  one  hundred  and  sixty- 
six  shall  apply  to  cases  under  this  section. 

§  181.  The  plaintiff  or  the  United  States,  in  any  suit  brought 
under  the  provision  of  the  section  last  preceding,  shall  have  the 
same  right  of  appeal  as  is  conferred  under  sections  two  hundred 
and  fortj^-two  and  two  hundred  and  forty-three ;  and  such  right 
shall  be  exercised  only  within  the  time  and  in  the  manner  therein 
prescribed. 

§  182.  In  any  case  brought  in  the  court  of  claims  under  any  act 
of  Congress  by  which  that  court  is  authorized  to  render  a  judg- 
ment or  decree  against  the  United  States,  or  against  any  Indian 
tribe  or  au}^  Indians,  or  against  any  fund  held  in  trust  by  the 
United  States  for  any  Indian  tribe  or  for  any  Indians,  the  claim- 
ant, or  the  United  States,  or  the  tribe  of  Indians,  or  other  party 
in  interest  shall  have  the  same  right  of  appeal  as  is  conferred  un- 
der sections  two  hundred  and  forty-two  and  two  hundred  and  for- 
ty-three ;  and  such  right  shall  be  exercised  only  within  the  time 
and  in  the  manner  therein  prescribed. 

§  183.  The  attorney  general  shall  report  to  Congress,  at  the  be- 
ginning of  each  regular  session,  the  suits  under  section  180,  in 
which  a  final  judgment  or  decree  has  been  rendered,  giving  the  date 
of  each  and  a  statement  of  the  costs  taxed  in  each  case. 

§  184.  In  anj'  case  of  a  claim  for  supplies  or  stores  taken  by  or 
furnished  to  any  part  of  the  military  or  naval  forces  of  the  United 
States  for  their  use  during  the  late  civil  war,  the  petition  shall 
aver  that  the  person  who  furnished  such  supplies  or  stores,  or 
from  whom  such  supplies  or  stores  were  taken,  did  not  give  any 
aid  or  comfort  to  said  rebellion,  but  was  throughout  that  war  loyal 
to  the  Government  of  the  United  States,  and  the  fact  of  such  lay- 


540  Appendix 

alty  shall  be  a  jurisdictional  fact ;  and  unless  the  said  court  shall, 
on  a  preliminary  inquiry,  find  that  the  person  -vvho  furnished  such 
supplies  or  stores,  or  from  "svhom  the  same  Avere  taken  as  afore- 
said, was  loyal  to  the  Government  of  the  United  States  through- 
out said  Avar,  the  court  shall  not  have  jurisdiction  of  such  cause, 
and  the  same  shall,  without  further  proceedings,  be  dismissed. 

§  185.  The  attorney  general,  or  his  assistants  under  his  direc- 
tion, shall  appear  for  the  defense  and  protection  of  the  interests 
of  the  United  States  in  all  cases  which  may  be  transmitted  to  the 
court  of  claims  under  the  provisions  of  this  chapter,  with  the  same 
power  to  interpose  counter  claims,  offsets,  defenses  for  fraud  prac- 
ticed or  attempted  to  be  practiced  by  claimants,  and  other  defenses, 
in  like  manner  as  he  is  required  to  defend  the  United  States  in 
said  court. 

§  186.  No  person  shall  be  excluded  as  a  witness  in  the  court  of 
claims  on  account  of  color  or  because  he  or  she  is  a  party  to  or 
interested  in  the  cause  or  proceeding ;  and  any  plaintiff  or  party  in 
interest  may  be  examined  as  a  witness  on  the  part  of  the  Govern- 
ment. 

Amended  by  the  Act  of  Feb.  5,  1912,  c.  28  (37  Stat.  L.  61). 

§  187.  Reports  of  the  court  of  claims  to  Congress,  under  sections 
one  hundred  and  forty-eight  and  one  hundred  and  fifty-one,  if 
not  finally  acted  upon  during  the  session  at  which  they  are  re- 
ported, shall  be  continued  from  session  to  session  and  from  Con- 
gress to  Congress  until  the  same  shall  be  finally  acted  upon. 


CHAPTER  VIIT 

THE  COURT  OF  CUSTOMS  APPEALS 

I  188.  Court  of  Customs  Appeals — Appointment  anci  salary  of  judges — Quorum 

— Circuit  and  district  judges  may  act  in  place  of  judge  disqualified, 

etc. 
5  189.  Court    to    lie    always    oj)cn    for    liusinoss — Terms    may    ho    held    in    any 

circuit — When  exf)enses  of  judges  to  be  paid. 
J  190.  Afarslial  of  the  court — Ap[»ointm('nt,  salary,  and  duties. 
?  191.  Clerk  of  the  court — Af)ii(iintment,  salary,  and  duties. 
J  192.   Assistant  clerk,  stenographic  clerks,  and  reporter — Ajipointmcnt,  salary, 

and  duties. 
S  19.'!.    F{o(»m8  for  holding  court  to  be  jirovidcd — PiailifTs  and  messengers. 


The  Judicial  Code  541 

§  194.  To   be   a  court   of   record — To   prescribe   form   and   style   of   seal,   and 

establish   rules  and  regulations — May  affirm,   modify,   or   reverse  and 

remand  ease,  etc. 
§  19j.  Final  decisions  of  Board  of  General  Appraisers  to  be  reviewed  only  by 

Customs  Court. 
§  19G.  Other  courts  deprived  of  jurisdiction  in  customs  cases — Pending   cases 

excejjted. 
§  197.  Transfer  to  Customs  Court  of  pending  cases — Completion  of  testimony. 
§  198.  Appeals  from  Board  of  General  Appraisers — Time  within  which  to  be 

taken — Record  to  be  transmitted  to  customs  court. 
§  199.  Records   filed   in   Customs    Court   to    be  at   once   placed   on   calendar — 

Calendar  to  be  called  every  sixty  days. 

§  188.  There  shall  be  a  United  States  court  of  customs  appeals, 
which  shall  consist  of  a  presiding  judge  and  four  associate  judges, 
each  of  whom  shall  be  appointed  by  the  President,  by  and  with 
the  advice  and  consent  of  the  Senate,  and  shall  receive  a  salary  of 
seven  thousand  dollars  a  year.  The  presiding  judge  shall  be  so 
designated  in  the  order  of  appointment  and  in  the  commission 
issued  to  him  by  the  President ;  and  the  associate  judges  shall 
have  precedence  according  to  the  date  of  their  commissions.  Any 
three  members  of  said  court  shall  constitute  a  quorum,  and  the 
concurrence  of  three  members  shall  be  necessary  to  any  decision 
thereof.  In  case  of  a  vacancy  or  of  the  temporary  inability  or 
disqualification,  for  any  reasons,  of  one  or  tAvo  of  the  judges  of 
said  court,  the  President  may,  upon  tlie  request  of  the  presiding 
judge  of  said  court,  designate  any  qualified  United  States  circuit 
or  district  judge  or  judges  to  act  in  his  or  their  place ;  and  such 
circuit  or  district  judges  shall  be  duly  qualified  to  so  act. 

By  the  Act  of  Feb.  25,  1919,  c.  29  (40  Stat.  L.  1157)  it  was  provided  that 
the  judges  of  the  United  States  Court  of  Customs  Appeals  should  receive  the 
same  salary  as  that  given  to  the  judges  of  the  Circuit  Court  of  Appeals,  that 
is  $8,500  a  year. 

§  189.  The  said  court  of  customs  appeals  shall  always  be  open 
for  the  transaction  of  business,  and  sessions  thereof  may,  in  the 
discretion  of  the  court,  be  held  in  the  several  judicial  circuits,  and 
at  such  places  as  said  court  may  from  time  to  time  designate.  Any 
judge  who,  in  pursuance  of  the  provisions  of  this  chapter,  shall 
attend  a  session  of  said  court  at  any  place  other  than  the  city  of 
Washington,  shall  be  paid,  upon  his  written  and  itemized  certifi- 
cate, by  the  marshal  of  the  district  in  which  the  court  shall  be  held, 
his  actual  and  necessary  expenses  incurred  for  travel  and  attend- 
ance, and  the  actual  and  necessary  expenses  of  one  stenographic 
clerk  who  may  accompany  him ;  and  such  payments  shall  be  al- 


542  Appendix 

lowed  the  marshal  in  the  settlement  of  his  accounts  with  the  United 
States. 

§  190.  Said  court  shall  have  the  services  of  a  marshal,  with  the 
same  duties  and  powers,  under  the  regulations  of  the  court,  as  are 
now  provided  for  the  marshal  of  the  Supreme  Court  of  the  United 
States,  so  far  as  the  same  may  be  applicable.  Said  services  within 
the  District  of  Columbia  shall  be  performed  by  a  marshal  to  be 
appointed  by  and  to  hold  office  during  the  pleasure  of  the  court, 
who  shall  receive  a  salary  of  three  thousand  dollars  per  annum. 
Said  services  outside  of  the  District  of  Columbia  shall  be  performed 
by  the  United  States  marshals  in  and  for  the  districts  where  ses- 
sions of  said  cqurt  may  be  held ;  and  to  this  end  said  marshals 
shall  be  the  marshals  of  said  court.  The  marshal  of  said  court, 
for  the  District  of  Columbia,  is  authorized  to  purchase,  under  the 
direction  of  the  presiding  judge,  such  books,  periodicals,  and  sta- 
tionery, as  may  be  necessary  for  the  use  of  said  court ;  and  such 
expenditures  shall  be  allowed  and  paid  by  the  secretary  of  the 
treasury  upon  claim  duly  made  and  approved  by  said  presiding 
judge. 

§  191.  The  court  shall  appoint  a  clerk,  whose  office  shall  be  in 
the  city  of  Washington,  District  of  Columbia,  and  who  shall  per- 
form and  exercise  the  same  duties  and  powers  in  regard  to  all  mat- 
ters within  the  jurisdiction  of  said  court  as  are  now  exercised 
and  performed  bj'  the  clerk  of  the  Supreme  Court  of  the  United 
States,  so  far  as  the  same  may  be  applicable.  The  salary  of  the 
clerk  shall  be  three  thousand  five  hundred  dollars  per  annum, 
which  shall  be  in  full  payment  for  all  service  rendered  by  such 
clerk;  and  all  fees  of  any  kind  whatever,  and  all  costs  shall  be 
by  him  turned  into  the  United  States  treasury.  Said  clerk  shall 
not  be  appointed  by  the  court  or  any  judge  thereof  as  a  commis- 
sioner, master,  receiver,  or  referee.  The  costs  and  fees  in  the  said 
court  shall  be  fixed  and  established  by  said  court  in  a  table  of 
foes  to  be  adopted  and  approved  by  the  supreme  court  of  the 
United  States  witliin  four  months  after  the  organization  of  said 
court:  Provided,  Tliat  the  costs  and  fees  so  fixed  shall  not,  with 
respect  to  any  item,  exceed  the  costs  and  fees  chai'ged  in  the 
supreme  court  of  llic  United  States;  and  the  same  shall  be  ex- 
pended, aecoiiiited  for,  aiul  p;iid  ovei-  t(»  the  treasui'v  of  the  United 


The  Judicial  Code  543 

§  192.  In  addition  to  the  clerk,  the  court  may  appoint  an  assist- 
ant clerk  at  a  salary  of  two  thousand  dollars  per  aimum,  five  steno- 
graphic clerks  at  a  salary  of  one  thousand  six  hundred  dollars  per 
annum  each,  one  stenographic  reporter  at  a  salary  of  two  thou- 
sand five  hundred  dollars  per  annum,  and  a  messenger  at  a  salary 
of  eight  hundred  and  forty  dollars  per  annum,  all  payable  in 
equal  monthly  installments,  and  all  of  whom,  including  the  clerk, 
shall  hold  office  during  the  pleasure  of  and  perform  such  duties  as 
are  assigned  them  by  the  court.  Said  reporter  shall  prepare  and 
transmit  to  the  secretary  of  the  Treasury  once  a  week  in  time  for 
publication  in  the  Treasury  Decisions  copies  of  all  decisions  ren- 
dered to  that  date  of  said  court,  at  least  once  a  year,  reports  of 
said  decisions  rendered  to  that  date,  constituting  a  volume,  which 
shall  be  printed  by  the  Treasury  Department  in  such  numbers  and 
distributed  or  sold  in  such  manner  as  the  secretary  of  the  Treas- 
ury shall  direct. 

§  193.  The  marshal  of  said  court  for  the  District  of  Columbia 
and  the  marshals  of  the  several  districts  in  which  said  court  of 
customs  appeals  may  be  held  shall,  under  the  direction  of  the  attor- 
ney general,  and  with  his  approval,  provide  such  rooms  in  the 
public  buildings  of  the  United  States  as  may  be  necessary  for  said 
court :  Provided,  That  in  case  proper  rooms  cannot  be  provided 
in  such  buildings,  then  the  said  marshals,  with  the  approval  of 
the  attorney  general,  ma}-,  from  time  to  time,  lease  such  rooms  as 
may  be  necessary  for  said  court.  The  bailiffs  and  messengers  of 
said  court  shall  be  allowed  the  same  compensation  for  their  re- 
spective services  as  are  allowed  for  similar  services  in  the  existing 
district  courts.  In  no  case  shall  said  marshals  secure  other  rooms 
than  those  regularly  occupied  by  existing  district  courts,  or  other 
public  officers,  except  where  such  cannot,  by  reason  of  actual  oc- 
cupancy or  use,  be  occupied  or  used  by  said  court  of  customs  ap- 
peals. 

§  194.  The  said  court  of  customs  appeals  shall  be  a  court  of 
record,  with  jurisdiction  as  in  this  chapter  established  and  limited. 
It  shall  prescribe  the  form  and  style  of  its  seal,  and  the  form  of 
its  writs  and  other  process  and  procedure,  and  exercise  such  powers 
conferred  by  law  as  may  be  conformable  and  necessary  to  the  ex- 
ercise of  its  jurisdiction.  It  shall  have  power  to  establish  all  rules 
•ftnd  regulations  for  the  conduct  of  the  business  of  the  court,  and 
as   may   be   needful    for  the  uniformitv   of   decisions   within    its 


544  Appendix 

jurisdiction  as  conferred  by  law.  It  shall  have  power  to  review 
any  decision  or  matter  within  its  jurisdiction,  and  may  affirm, 
modify,  or  reverse  the  same  and  remand  the  case  with  such  orders 
as  may  seem  to  it  proper  in  the  premises,  which  shall  be  executed 
accordingly. 

§  195.  The  court  of  customs  appeals  established  by  this  chapter 
shall  exercise  exclusive  appellate  jurisdiction  to  review  by  appeal, 
as  herein  provided,  final  decisions  by  a  board  of  general  appraisers 
in  all  cases  as  to  the  construction  of  the  law  and  the  facts  respect- 
ing the  classification  of  merchandise  and  the  rate  of  duty  imposed 
thereon  under  such  classification,  and  the  fees  and  charges  con- 
nected therewith,  and  all  appealable  questions  as  to  the  jurisdic- 
tion of  said  board,  and  all  appealable  questions  as  to  the  laws  and 
regulations  governing  the  collections  of  the  customs  revenues ;  and 
the  judgments  and  decrees  of  said  court  of  customs  appeals  shall 
be  final  in  all  such  cases :  Provided,  however,  That  in  any  case 
in  which  the  judgment  or  decree  of  the  court  of  customs  appeals 
is  made  final  by  the  provisions  of  this  title,  it  shall  be  competent 
for  the  supreme  court,  upon  the  petition  of  either  party,  filed 
within  sixty  days  next  after  the  issue  by  the  court  of  customs 
appeals  of  its  mandate  upon  decision,  in  any  case  in  which  there 
is  drawn  in  question  the  construction  of  the  Constitution  of  the 
United  States,  or  any  part  thereof,  or  any  treaty  made  pursuant 
thereto,  or  in  any  other  ease  when  the  Attorney  General  of  the 
United  States  shall,  before  the  decision  of  the  court  of  customs 
appeals  is  rendered,  file  with  the  court  a  certificate  to  the  effect 
tluit  tlie  case  is  of  such  importance  as  to  render  expedient  its  re- 
view by  the  supreme  court,  to  require,  by  certiorari  or  otherwise, 
such  case  to  be  certified  to  the  supreme  court  for  its  review  and 
determination,  with  the  same  power  and  authority  in  the  case  as 
if  it  had  been  carried  by  appeal  or  writ  of  error  to  the  supreme 
court :  And  provided  further,  That  this  Act  shall  not  apply  to 
any  case  involving  only  the  construction  of  section  one,  or  anj'- 
jmrtion  1  hereof,  of  an  Act  entitled  "An  Act  to  provide  revenue, 
cqiiali/.c  duties,  and  cncouiagc  llic  industries  of  the  United  States, 
and  for  other  purposes,"  approved  August  5,  1909,  nor  to  any 
case  involving  the  construclion  of  sect  ion  two  of  an  Act  entitled 
"An  Ad  If)  promote  reciprocal  trade  relations  with  the  Dominion 
of  Canarla,  and  for  other  pnrposes,"  approved  July  20,  1911. 

Airicii.lc.l  l,y  tlu;  Act  of  AiiRiist  22,  1914,  c.  207   (.".S  Stat.  L.  70.'!). 


The  Juuicial  Code  545 

§  196.  After  the  organization  of  said  court,  no  appeal  shall  be 
taken  or  allowed  from  any  board  of  United  States  general  apprais- 
ers to  any  other  court,  and  no  appellate  jurisdiction  shall  there- 
after be  exercised  or  allowed  by  any  other  courts  in  cases  decided 
by  said  board  of  United  States  general  appraisers ;  but  all  appeals 
allowed  by  law  from  such  board  of  general  appraisers  shall  be 
subject  to  review  only  in  the  court  of  customs  appeals  hereby 
established,  according  to  the  provisions  of  this  chapter :  Provided, 
That  nothing  in  this  chapter  shall  be  deemed  to  deprive  the  Su- 
preme Court  of  the  United  States  of  jurisdiction  to  hear  and  de- 
termine all  customs  eases  which  have  heretofore  been  certified  to 
said  court  from  the  United  States  circuit  courts  of  appeals  on  appli- 
cations for  writs  of  certiorari  or  otherwise,  nor  to  review  by  writ 
of  certiorari  any  customs  case  heretofore  decided  or  now  pending 
and  hereafter  decided  by  any  circuit  court  of  appeals,  provided 
application  for  said  writ  be  made  within  six  months  after  August 
5,  1909 :  Provided  further,  That  all  customs  cases  decided  by  a 
circuit  or  district  court  of  the  United  States  or  a  court  of  a  terri- 
tory of  the  United  States  prior  to  said  date  above  mentioned,  and 
which  have  not  been  removed  from  said  courts  by  appeal  or  writ 
of  error,  and  all  such  cases  theretofore  submitted  for  decision  in 
said  courts  and  remaining  undecided  may  be  reviewed  on  appeal 
at  the  instance  of  either  party  by  the  United  States  Court  of  Cus- 
toms Appeals,  provided  such  appeal  be  taken  within  one  year 
from  the  date  of  the  entry  of  the  order,  judgment,  or  decrees  sought 
to  be  reviewed. 

§197.  Immediately'upon  the  organization  of  the  court  of  cus- 
toms appeals,  all  eases  within  the  jurisdiction  of  that  court  pend- 
ing and  not  submitted  for  decision  in  any  of  the  United  States  cir- 
cuit courts  of  appeals.  United  States  circuit,  territorial  or  district 
courts,  shall,  with  the  record  and  samples  therein,  be  certified  by 
said  courts  to  said  court  of  customs  appeals  for  further  proceed- 
ings in  accordance  herewith :  Provided,  That  where  orders  for  the 
taking  of  further  testimony  before  a  referee  have  been  made  in 
any  of  such  cases,  the  taking  of  such  testimony  shall  be  completed 
before  such  certification. 

§  198.  If  the  importer,  owner,  consignee,  or  agent  of  any  im- 
ported merchandise,  or  the  collector  or  secretary  of  the  treasury, 
shall  be  dissatisfied  with  the  decision  of  the  board  of  general  ap- 
praisers as  to  the  construction  of  the  law  and  the  facts  respecting 
Wheaton  C.  F.  P.— 35 


546  Appendix 

the  classification  of  such  merchandise  and  the  rate  of  duty  im- 
posed thereon  under  such  classification,  or  with  any  other  appeal- 
able decision  of  said  board,  they,  or  either  of  them,  may,  within 
sixty  days  next  after  the  entry  of  such  decree  or  judgment,  and  not 
afterwards,  apply  to  the  court  of  customs  appeals  for  a  review 
of  the  questions  of  law  and  fact  involved  in  such  decision :  Pro- 
vided, That  in  Alaska  and  in  the  insular  and  other  outside  pos- 
sessions of  the  United  States  ninety  days  shall  be  allowed  for  mak- 
ing such  application  to  the  court  of  customs  appeals.  Such  ap- 
plication shall  be  made  by  filing  in  the  office  of  the  clerk  of  said 
court  a  concise  statement  of  errors  of  law  and  fact  complained  of; 
and  a  copj'  of  such  statement  shall  be  served  on  the  collector,  or 
on  the  importer,  owner,  consignee,  or  agent,  as  the  case  may  be. 
Thereupon  the  court  shall  immediately  order  the  board  of  gen- 
eral appraisers  to  transmit  to  said  court  the  record  and  evidence 
taken  by  them,  together  with  the  certified  statement  of  the  facts 
involved  in  the  case  and  their  decision  thereon ;  and  all  the  evi- 
dence taken  by  and  before  said  board  shall  be  competent  evidence 
before  said  court  of  customs  appeals.  The  decision  of  said  court 
of  customs  appeals  shall  be  final,  and  such  cause  shall  be  re- 
manded to  said  board  of  general  appraisers  for  further  proceedings 
to  be  taken  in  pursuance  of  such  determination. 

§  199.  Immediately  upon  receipt  of  any  record  transmitted  to 
said  court  for  determination  the  clerk  thereof  shall  place  the  same 
upon  the  calendar  for  hearing  and  submission ;  and  such  calendar 
shall  be  called  and  all  cases  thereupon  .submitted,  except  for  good 
cause  shoAvn,  at  least  once  every  sixty  days:  Provided,  That  such 
calendar  need  not 'be  called  during  the  months  of  July  and  Au- 
gust of  any  year. 


CHAPTER  TX* 

THE  COMMERCE  COURT 

1 200.  Conimeroo    Court    crcatcil — Judgi'S    of,    a|i]'oiiifiii('iit    ami    designation — 

Expense  allowance  to  .iudgcs. 
5  201.  Additional  circuit  .iudf^es — Appointiiuiit  and  assignment. 
5  202.  Oflicers  of  the  court — Clerk,  marshal,  etc. — Salaries,  etc. 

•This   chapter   is   ohsoleto,   the   Commerce   Court    having  liecii    aliolishod   by 
Act  of  Oct.  22,  191.S,  e.  .M2  (:!8  Stat.  L.  210). 


The  Judicial  Code  547 

§  203.  Court  to  be  always  open  for  business — Sessions  of,  to  be  held  in 
Washington  and  elsewhere. 

§  204.  Marshals  to  provide  rooms  for  holding  court  outside  of  Washington. 

§  205.  Assignment  of  judges  to  other  duty — Vacancies,  how  filled. 

§  206.  Powers  of  court  and  judges — Writs,  process,  procedure,  etc. 

§  207.  Jurisdiction  of  the  court. 

§  208.  Suits  to  enjoin,  etc.,  orders  of  Interstate  Commerce  Commission  to  be 
against  United  States — Eestraining  orders,  when  granted  without 
notice. 

§  209.  Jurisdiction  of  the  court,  how  invoked — Practice  and  procedure. 

§  210.  Final  judgments  and  decrees  reviewable  in  Supreme  Court. 

§  211,  Suits  to  be  against  United  States — When  United  States  may  inter- 
vene. 

§  212.  Attorney  Oeneral  to  control  all  cases — Interstate  Commerce  Commis- 
sion may  appear  as   of  right — Parties   interested  may  intervene,  etc. 

§  213.  Complainants  may  appear  and  be  made  parties  to  case. 

§  214.  Pending  cases  to  be  transferred  to  Commerce  Court — Exception — Status 
of  transferred  cases. 

§  200.  There  shall  be  a  court  of  the  United  States,  to  be  known 
as  the  commerce  court,  which  shall  be  a  court  of  record,  and  shall 
have  a  seal  of  such  form  and  style  as  the  court  may  prescribe. 
The  said  court  shall  be  composed  of  five  judges,  to  be  from  time 
to  time  designated  and  assigned  thereto  by  the  chief  justice  of  the 
United  States,  from  among  the  circuit  judges  of  the  United  States, 
for  the  period  of  five  years,  except  that  in  the  first  instance  the 
court  shall  be  composed  of  the  five  additional  circuit  judges  re- 
ferred to  in  the  next  succeeding  section,  who  shall  be  designated 
by  the  President  to  serve  for  one,  two,  three,  four,  and  five  years, 
respectively,  in  order  that  the  period  of  designation  of  one  of  the 
said  judges  shall  expire  in  each  year  thereafter.  In  case  of  the 
death,  resignation,  or  termination  of  assignment  of  any  judge  so 
designated,  the  chief  justice  shall  designate  a  circuit  judge  to  fill 
the  vacancy  so  caused  and  to  serve  during  the  unexpired  period 
for  which  the  original  designation  was  made.  After  the  year  nine- 
teen hundred  and  fourteen  no  circuit  judge  shall  be  redesignated 
to  serve  in  the  commerce  court  until  the  expiration  of  at  least  one 
year  after  the  expiration  of  the  period  of  his  last  previous  desig- 
nation. The  judge  first  designated  for  the  five-year  period  shall 
be  the  presiding  judge  of  said  court,  and  thereafter  the  judge 
senior  in  designation  shall  be  the  presiding  judge.  The  associate 
judges  shall  have  precedence  and  shall  succeed  to  the  place  and 
powers  of  the  presiding  judge,  whenever  he  may  be  absent  or  in- 
capable of  acting  in  the  order  of  the  date  of  their  designations.  Four 
of  said  judges  shall  constitute  a  quorum,  and  at  least  a  majority  of 


548  Appendix 

the  court  shall  concur  in  all  decisions.  Each  of  the  judges  during 
the  period  of  his  service  in  the  commerce  court  shall,  on  account 
of  the  regular  sessions  of  the  court  being  held  in  the  city  of  Wa.sh- 
ington,  receive  in  addition  to  his  salary  as  circuit  judge  an  ex- 
pense allowance  at  the  rate  of  one  thousand  five  hundred  dollars 
per  annum. 

§  201.  The  five  additional  circuit  judges  authorized  by  the  Act 
to  create  a  commerce  court,  and  for  other  purposes,  approved  June 
eighteenth,  nineteen  hundred  and  ten,  shall  hold  office  during  good 
behavior,  and  from  time  to  time  shall  be  designated  and  assigned 
by  the  chief  justice  of  the  United  States  for  service  in  the  district 
court  of  any  district,  or  the  circuit  court  of  appeals  for  any  cir- 
cuit, or  in  the  commerce  court,  and  when  so  designated  and 
assigned  for  service  in  a  district  court  or  circuit  court  of  appeals 
shall  have  the  powers  and  jurisdiction  in  this  Act  conferred  upon 
a  circuit  judge  in  his  circuit. 

§  202.  The  court  shall  also  have  a  clerk  and  a  marshal,  with  the 
same  duties  and  powers,  so  far  as  they  may  be  appropriate  and 
are  not  altered  by  rule  of  the  court,  as  are  now  possessed  by  the 
clerk  and  marshal,  respectively,  of  the  supreme  court  of  the 
United  States.  The  offices  of  the  clerk  and  mai\shal  of  the  court 
shall  be  in  the  city  of  Washington,  in  the  District  of  Columbia. 
The  judges  of  the  court  shall  appoint  the  clerk  and  marshal,  and 
may  also  appoint,  if  they  find  it  necessary,  a  deputy  clerk  and 
deputy  marshal ;  and  such  clerk,  marshal,  deputy  clerk,  and  deputy 
marshal,  shall  hold  office  during  the  pleasure  of  the  court.  The 
salary  of  the  clerk  shall  be  four  thousand  dollars  per  annum ;  the 
salary  of  the  marshal  three  thousand  dollars  per  annum ;  the 
salary  of  the  deputy  clerk  two  thousand  five  hundred  dollars  per 
annum ;  and  the  salary  of  the  deputy  marshal  two  thousand  five 
hundred  dollars  per  annum.  The  said  clerk  and  marshal  may,  with 
the  approval  of  the  court,  employ  all  requisite  assistance.  The 
costs  and  fees  in  said  court  shall  be  established  by  the  court  in  a 
table  thereof,  ajipiovcd  l)y  the  supreme  court  of  the  United  States, 
witliin  four  months  af'icr  Ihc  organization  of  the  court;  but  such 
costs  and  fees  shall  in  no  case  exceed  those  charged  in  the  supreme 
court  of  the  United  States,  aiul  shall  be  accounted  for  and  paid 
into  the  ti'cjisur'V  ol"  the  United  Stales. 

§203.  The  cormneree  court  shall  always  be  open  for  the  trans- 
action of  business.      Its  i-egular  sessions  shall  be  held   in  the  city 


The  Judicial  Code  549 

of  Washington,  in  the  District  of  Columbia;  bnt  the  powers  of  the 
court  or  of  any  judge  thereof,  or  of  the  clerk,  marshal,  deputy 
clerk,  or  deputy  mai-shal,  may  be  exercised  anywhere  in  the  United 
States ;  and  for  expedition  of  the  work  of  the  court  and  the  avoid- 
ance of  undue  expense  or  inconvenience  to  suitors  the  court  shall 
hold  sessions  in  different  parts  of  the  United  States  as  may  be 
found  desirable.  The  actual  and  necessary  expenses  of  the  judges, 
clerk,  marshal,  deputy  clerk,  and  deputy  marshal  of  the  court  in- 
curred for  travel  and  attendance  elsewhere  than  in  the  city  of 
Washington  shall  be  paid  upon  the  written  and  itemized  certificate 
of  such  judge,  clerk,  marshal,  deputy  clerk,  or  deputy  marshal,  by 
the  marshal  of  the  court,  and  shall  be  allowed  to  him  in  the  settle- 
ment of  his  accounts  with  the  United  States. 

§  204.  The  United  States  marshals  of  the  several  districts  out- 
side of  the  city  of  Washington  in  which  the  commerce  court  may 
hold  its  sessions  shall  provide,  under  the  direction  and  with  the  ap- 
proval of  the  attorney  general,  such  rooms  in  the  public  buildings 
of  the  United  States  as  ma}'  be  necessary  for  the  court 's  use ;  but 
in  case  proper  rooms  cannot  be  provided  in  such  public  buildings, 
said  marshals,  with  the  approval  of  the  attorney  general,  may 
then  lease  from  time  to  time  other  necessary  rooms  for  the  court. 

§  205.  If,  at  any  time,  the  business  of  the  commerce  court  does 
not  require  the  services  of  all  the  judges,  the  chief  justice  of  the 
United  States  may,  by  writing,  signed  by  him  and  filed  in  the 
department  of  justice,  terminate  the  assignment  of  any  of  the 
judges  or  temporarily  assign  him  for  service  in  any  district  court 
or  circuit  court  of  appeals.  In  case  of  illness  or  other  disability 
of  any  judge  assigned  to  the  commerce  court  the  chief  justice  of 
the  United  States  may  assign  any  other  circuit  judge  of  the  United 
States  to  act  in  his  place,  and  may  terminate  such  assignment 
when  the  exigency  therefor  shall  cease ;  and  any  circuit  judge  so 
assigned  to  act  in  place  of  such  judge  shall,  during  his  assignment, 
exercise  all  the  powers  and  perform  all  the  functions  of  such  judge. 

§  206.  In  all  cases  within  its  jurisdiction  the  commerce  court, 
and  each  of  the  judges  assigned  thereto,  shall,  respectively,  have 
and  may  exercise  any  and  all  of  the  powers  of  a  district  court  of 
the  United  States  and  of  the  judges  of  said  court,  respectively,  so 
far  as  the  same  may  be  appropriate  to  the  effective  exercise  of  the 
jurisdiction  hereby  conferred.    The  commerce  court  may  issue  all 


550  Appendix 

writs  and  process  appropriate  to  the  full  exercise  of  its  jurisdic- 
tion and  powers  and  may  prescribe  the  form  thereof.  It  may  also, 
from  time  to  time,  establish  such  rules  and  regulations  concerning 
pleading,  practice,  or  procedure  in  cases  or  matters  within  its 
jurisdiction  as  to  the  court  shall  seem  wise  and  proper.  Its  or- 
ders, writs,  and  process  may  run,  be  served,  and  be  returnable  any- 
where in  the  United  States;  and  the  marshal  and  deputy  marshal 
of  said  court  and  also  the  United  States  marshals  and  deputy 
marshals  in  the  several  districts  of  the  United  States  shall  have 
like  powers  and  be  under  like  duties  to  act  for  and  in  behalf  of 
said  court  as  pertain  to  United  States  marshals  and  deputy  mar- 
shals generally  when  acting  under  like  conditions  concerning  suits 
or  matters  in  the  district  courts  of  the  United  States. 

§  207.  The  commerce  court  shall  have  the  jurisdiction  possessed 
by  circuit  courts  of  the  United  States  and  the  judges  thereof  im- 
mediately prior  to  June  eighteenth,  nineteen  hundred  and  ten, 
over  all  cases  of  the  following  kinds : 

First.  All  cases  for  the  enforcement,  otherwise  than  by  adjudi- 
cation and  collection  of  a  forfeiture  or  penalty  or  by  infliction  of 
criminal  punishment,  of  any  order  of  the  Interstate  Commerce 
Commission  other  than  for  the  pajTnent  of  money. 

Second.  Cases  brought  to  enjoin,  set  aside,  annul,  or  suspend  in 
whole  or  in  part  any  order  of  the  Interstate  Commerce  Commis- 
sion. 

Third.  Such  cases  as  by  section  three  of  the  Act  entitled  "An 
Act  to  further  regulate  commerce  with  foreign  nations  and  among 
the  states,"  approved  February  nineteenth,  nineteen  hundred  and 
three,  are  authorized  to  be  maintained  in  a  circuit  court  of  the 
United  States. 

Fourth.  All  such  mandamus  proceedings  as  under  the  pro- 
visions of  section  twenty  or  section  twenty-three  of  the  Act  entitled 
"An  Act  to  regulate  commerce,"  approved  February  fourth, 
eighteen  hundred  and  eighty-seven,  as  amended,  are  authorized  to 
be  maintained  in  a  circuit  court  of  the  United  States. 

Nothing  contained  in  this  chapter  .shall  be  construed  as  enlarging 
the  jurisdiction  now  possessed  by  the  circuit  courts  of  the  United 
States  or  the  judges  thereof,  that  is  herebj'^  transferred  to  and 
vested  in  the  commerce  court. 

The  jurisdiction  of  tlie  commerce  court  over  cases  of  the  fore- 
going classes  sh;ill  be  exclusive;  but  1liis  chapter  shall  not  affect 
the  jurisdii'tion   jtossessed  by  any  circuit   or  district  court  of  the 


The  JuniciAT.  Code  551 

ITnited  States  over  cases  or  proceedings  of  a  kind  not  within  the 
above-enumerated  classes. 

§  208.  Suits  to  enjoin,  set  aside,  annul,  or  suspend  any  order  of 
the  Interstate  Commerce  Commission  shall  be  brought  in  the  com- 
merce court  against  the  United  States.  The  pendency  of  such  suit 
shall  not  of  itself  stay  or  suspend  the  operation  of  the  order  of 
the  Interstate  Commerce  Commission ;  but  the  commerce  court,  in 
its  discretion,  may  restrain  or  suspend,  in  whole  or  in  part,  the 
operation  of  the  commission's  order  pending  the  final  hearing  and 
determination  of  the  suit.  No  order  or  injunction  so  restraining 
or  suspending  an  order  of  the  Interstate  Commerce  Commission 
sliall  be  made  by  the  commerce  court  otherwise  than  upon  notice 
and  after  hearing,  except  that  in  case  where  irreparable  damage 
would  otherwise  ensue  to  the  petitioner,  said  court,  or  a  judge 
thereof  may,  on  hearing  after  not  less  than  three  days'  notice  to 
the  Interstate  Commerce  Commission  and  the  attorney  general, 
allow  a  temporary  stay  or  suspension  in  whole  or  in  part  of  the 
operation  of  the  order  of  the  Interstate  Commerce  Commission  for 
not  more  than  sixty  days  from  the  date  of  the  order  of  such  court 
or  judge,  pending  application  to  the  court  for  its  order  or  injunc- 
tion, in  which  case  the  said  order  shall  contain  a  specific  finding, 
based  upon  evidence  submitted  to  the  judge  making  the  order  and 
identified  by  reference  thereto,  that  such  irreparable  damage  would 
result  to  the  petitioner  and  specifying  the  nature  of  the  damage. 
The  court  may,  at  the  time  of  hearing  such  application,  upon  a  like 
finding,  continue  the  temporary  stay  or  suspension  in  whole  or  in 
part  until  its  decision  upon  the  application. 

§  209.  The  jurisdiction  of  the  commerce  court  shall  be  invoked 
by  filing  in  the  office  of  the  clerk  of  the  court  a  written  petition 
setting  forth  briefly  and  succinctly  the  facts  constituting  the  pe- 
titioner's cause  of  action,  and  specifying  the  relief  sought.  A  copy 
of  such  petition  shall  be  forthw^ith  served  by  the  marshal  or  a  dep- 
uty marshal  of  the  commerce  court  or  by  the  proper  United  States 
marshal  or  deputy  marshal  upon  every  defendant  therein  named, 
and  when  the  United  States  is  a  party  defendant,  the  service  shall 
be  made  by  filing  a  copy  of  said  petition  in  the  office  of  the  secre- 
tary of  the  Interstate  Commerce  Commission  and  in  the  depart- 
ment of  justice.  Within  thirty  days  after  the  petition  is  served, 
unless  that  time  is  extended  by  order  of  the  court  or  a  judge 
thereof,  an  answer  to  the  petition  shall  be  filed  in  the  clerk's  office. 


552  Appendix 

and  a  eopj^  thereof  mailed  to  the  petitioner's  attorney,  which  an- 
swer shall  briefly'  and  categorically  respond  to  tKe  allegations  of 
petition.  No  replication  need  be  filed  to  the  answer,  and  objec- 
tions to  the  sntificienc}'  of  the  petition  or  answer  as  not  setting  forth 
a  cause  of  action  or  defense  must  be  taken  at  the  final  hearing  or 
by  motion  to  dismiss  the  petition  based  on  said  grounds,  which 
motion  may  be  made  at  any  time  before  answer  is  filed.  In  case 
no  auvswer  shall  be  filed  as  provided  herein  the  petitioner  may  ap- 
ply to  the  court  on  notice  for  such  relief  as  may  be  proper  upon 
the  facts  alleged  in  the  petition.  The  court  may,  by  rule,  pre- 
scribe the  method  of  taking  evidence  in  cases  pending  in  said  court ; 
and  may  prescribe  that  the  evidence  be  taken  before  a  single  judge 
of  the  court,  with  power  to  rule  upon  the  admission  of  evidence. 
Except  as  may  be  otherwise  provided  in  this  chapter,  or  by  rule  of 
the  court,  the  practice  and  procedure  in  the  commerce  court  shall 
conform  as  nearly  as  may  be  to  that  in  like  cases  in  a  district  court 
of  the  United  States. 

§  210.  A  final  judgment  or  decree  of  the  commerce  court  may  be 
reviewed  by  the  supreme  court  of  the  United  States  if  appeal  to 
the  supreme  court  be  taken  by  an  aggrieved  party  within  sixty 
days  after  the  entry  of  said  final  judgment  or  decree.  Such  ap- 
peal may  be  taken  in  like  manner  as  appeals  from  a  district  court 
of  the  United  States  to  the  supreme  court,  and  the  commerce  court 
may  direct  the  original  record  to  be  transmitted  on  appeal  instead 
of  a  transcript  thereof.  The  supreme  court  may  affirm,  reverse, 
or  modify  the  final  judgment  or  decree  of  the  commerce  court  as 
the  case  n^ay  require.  Appeal  to  the  supreme  court,  however,  shall 
in  no  case  supersede  or  stay  the  judgment  or  decree  of  the  com- 
merce court  appealed  from,  unless  the  supreme  court  or  a  justice 
thereof  shall  so  direct;  and  appellant  shall  give  bond  in  such 
form  and  of  such  amount  as  the  supi-eme  court,  or  the  justice  of 
that  court  allowing  the  stay,  may  rc(iuire.  An  appeal  may  also  be 
taken  to  the  supreme  court  of  the  United  States  from  an  inter- 
locutory order  or  decree  of  the  commerce  court  granting  or  con- 
tinuing an  injunction  restraining  the  enforcement  of  an  order  of 
the  Interstate  Commerce  Commission,  provided  such  appeal  be 
taken,  within  thirty  days  from  the  entry  of  such  order  or  decree. 
Api)eals  to  the  supreme  court  under  this  section  shall  have  priority 
in  hearing  and  dctcnuination  over  all  other  causes  except  criminal 
causes  in  tluit  court. 


The  Judicial  Code  55;j 

§211.  All  eases  and  proeeedings  in  the  commerce  court  which 
but  for  this  chapter  would  be  brought  by  or  against  the  Interstate 
Commerce  Commission, /shall  be  brought  by  or  against  the  United 
States,  and  the  United  States  may  intervene  in  any  case  or  pro- 
ceeding in  the  commerce  court  whenever,  though  it  has  not  been 
made  a  party,  public  interests  are  involved. 

§  212.  The  attorney  general  shall  have  charge  and  control  of  the 
interests  of  the  Government  in  all  cases  and  proceedings  in  the 
commerce  court,  and  in  the  supreme  court  of  the  United  States 
upon  appeal  from  the  commerce  court.  If  in  his  oipnion  the 
public  interest  requires  it,  he  may  retain  and  employ  in  the  name 
of  the  United  States,  within  the  appropriations  from  time  to  time 
made  by  the  Congress  for  such  purposes,  such  special  attorneys  and 
counselors  at  law  as  he  may  think  necessary  to  assist  in  the  dis- 
charge of  any  of  the  duties  incumbent  upon  him  and  his  subordi- 
ate  attorneys;  and  the  attorney  general  shall  stipulate  with  such 
special  attorneys  and  counsel  the  amount  of  their  compensation, 
which  shall  not  be  in  excess  of  the  sums  appropriated  therefor  by 
Congress  for  .such  purposes,  and  shall  have  supervision  of  their 
action :  Provided,  That  the  Interstate  Commerce  Commission  and 
any  party  or  parties  in  interest  to  the  proceeding  before  the  com- 
mission, in  which  an  order  or  requirement  is  made,  may  appear 
as  parties  thereto  of  their  own  motion  and  as  of  right,  anc  be 
represented  by  their  counsel,  in  any  suit  wherein  is  involved  the 
validity  of  such  order  or  requirement  or  any  part  thereof,  and  the 
interest  of  such  party;  and  the  court  wherein  is  pending  such  suit 
may  make  all  such  rules  and  orders  as  to  such  appearances  and 
representations,  the  number  of  counsel,  and  all  matters  of  pro- 
cedure, and  otherwise,  as  to  subserve  the  ends  of  justice  and  speed 
the  determination  of  such  suits:  Provided  further,  That  commu- 
nities, associations,  corporations,  firms,  and  individuals  who  are 
interested  in  the  controversy  or  question  before  the  Interstate 
Commerce  Commission,  or  in  any  suit  which  may  be  brought  by 
any  one  under  the  provisions  of  this  chapter,  or  the  Acts  of  which 
it  is  amendatory  or  which  are  amendatory  of  it,  relating  to  action 
of  the  Interstate  Commerce  Commission,  may  intervene  in  said 
suit  or  proceedings  at  any  time  after  the  institution  thereof;  and 
the  attorney  general  shall  not  dispose  of  or  discontinue  said  suit  or 
proceeding  over  the  objection  of  such  party  or  intervener  afore- 
said, but  said  intervenor  or  intervenors  may  prosecute,  defend,  or 


554  Appendix 

continue  said  suit  or  proceeding  unaffected  by  the  action  or  non- 
action of  the  attorney  general  therein. 

§  213.  Complainants  before  the  Interstate  Commerce  Commis- 
sion interested  in  a  case  shall  have  the  right  to  appear  and  be  made 
parties  to  the  case  and  be  represented  before  the  courts  by  coun- 
sel, under  such  regulations  as  are  now  permitted  in  similar  cir- 
cumstances under  the  rules  and  practice  of  equity  courts  of  the 
United  States. 

§214.  Until  the  opening  of  the  commerce  court,  all  cases  and 
proceedings  of  Avhich  from  that  time  the  commerce  court  is  hereby 
given  exclusive  jurisdiction  may  be  brought  in  the  same  courts  and 
conducted  in  like  manner  and  with  like  effect  as  is  now  provided  by 
law ;  and  if  any  such  case  or  proceeding  shall  have  gone  to  final 
judgment  or  decree  before  the  opening  of  the  commerce  court, 
appeal  may  be  taken  from  such  final  judgment  or  decree  in  like 
manner  and  with  like  effect  as  is  now  provided  by  law.  Any 
such  case  or  proceeding  within  the  jurisdiction  of  the  commerce 
court  which  may  have  been  begun  in  any  other  court  as  hereby 
allowed,  before  the  said  date,  shall  be  forthwith  transferred  to 
the  commerce  court,  if  it  has  not  yet  proceeded  to  final  judgment 
or  decree  in  such  other  court  unless  it  has  been  finally  submitted 
for  the  decision  of  such  court,  in  which  case  the  cause  shall  pro- 
ceed in  such  court  to  final  judgment  or  decree  and  further  pro- 
ceeding thereafter,  and  appeal  may  be  taken  direct  to  the  supreme 
court ;  and  if  remanded,  such  cause  may  be  sent  back  to  the  court 
from  which  the  appeal  was  taken  or  to  the  commerce  court  for 
further  proceeding  as  the  supreme  court  shall  direct.  All  previous 
proceedings  in  such  transferred  case  shall  stand  and  operate  not- 
withstanding the  transfer,  subject  to  the  same  control  over  them 
by  the  commerce  court  and  to  the  same  right  of  subsequent  action 
in  the  case  or  proceeding  as  if  the  transferred  case  or  proceeding 
had  been  originally  begun  in  the  commerce  court.  The  clerk  of  the 
couit  from  wliich  any  case  or  proceeding  is  so  transferred  to  the 
commerce  court  .shall  transmit  to  and  file  in  the  commerce  court 
the  originals  of  all  papers  filed  in  such  case  or  proceeding  and  a 
certified  transcript  of  all  record  entries  in  the  case  or  proceeding 
lip  lo  llic  t  iiiic  (»r  I  rarisfcr. 


The  Judicial  Code  555 

CHAPTER  X 

THE  SUPREME  COURT 

§215.  Number  of  justices. 

§  216.  Precedents  [Precedence]  of  the  associate  justices. 

§  217.  Vacancy  in  the  oiS.ce  of  Chief  Justice. 

§  218.  Salaries  of  justices. 

§  219.  Clerk,  marshal,  and  reporter. 

§  220.  The  clerk  to  give  bond. 

§  221.  Deputies  of  the  Clerk. 

§  222.  Records  of  the  old  court  of  appeals. 

§  223.  Tables  of  fees. 

§  224.  Marshal  of  the  Supreme  Court. 

§  225.  Duties  of  the  reporter. 

§  226.  Reporter 's  salary  and  allowances. 

§  227.  Distribution  of  reports  and  digests. 

§  228.  Additional  reports  and  digests — Limitation  upon  cost — Estimates  to  ba 

submitted  to  Congress  annually. 
§  229.  Distribution  of  Federal  Reporter,  etc.,  and  Digests. 
§  230.  Terms. 

§  231.  Adjournment  for  want  of  a  quorum. 
§  232.  Certain  orders  made  by  less  than  quorum. 
§  233.  Original  disposition   [Exclusive  jurisdiction], 
§  234.  Writs  of  prohibition  and  mandamus, 
§  235.  Issues  of  fact. 
§  236.  Appellate  jurisdiction. 

§  237.  Writs  of  error  from  judgments  and  decrees  of  State  courts. 
§  238.  Appeals  and  writs  of  error  from  United  States  district  courts. 
§  239.  Circuit  court  of  appeals  may  certify  questions  to  Supreme  Court  for 

instructions, 
g  240.  Certiorari  to  circuit  court  of  appeals. 
§  241.  Appeals  and  writs  of  error  in  other  cases. 
§  242.  Appeals  from  Court  of  Claims. 

§  243.  Time  and  manner  of  appeals  from  the  Court  of  Claims, 
§  244.  Writs  of  error  and  appeals  from  Supreme  Court  of  and  United  States 

district  court  for  Porto  Rico. 
§  245.  Writs  of  error  and  appeals  from  the  Supreme  Courts  of  Arizona  and 

New  Mexico. 
§  246.  Writs  of  error  and  appeals  from  the  Supreme  Court  of  Hawaii. 
§  247.  Appeals  and  writs  of  error  from  the  district  court  for  Alaska  direct  to 

Supreme  Court  in  certain  cases. 
§  248.  Appeals  and  writs  of  error  from  the  Supreme  Court  of  the  Philippine 

Islands. 
§  249.  Appeals  and  writs  of  error  when  a  Territory  becomes  a  State. 
§  250.  Appeals  and  writs  of  error  from  the  Court  of  Appeals  of  the  District 

of  Columbia. 
§  251.  Certiorari  to  Court  of  Appeals,  District  of  Columbia. 
§  252.  Appellate  jurisdiction  under  the  bankruptcy  act. 


556  Appendix 

5  253.  Precedence  of  writs  of  error  to  State  courts. 

§  254.  Cost  of  printing  records. 

S  255.  Women  may  be  admitted  to  practice. 

§  215.  The  Supreme  Court  of  the  United  States  shall  consist  of 
a  chief  justice  of  the  United  States  and  eight  associate  justices, 
any  six  of  whom  shall  constitute  a  quorum. 

§  216.  The  associate  justices  shall  have  precedence  according  to 
the  dates  of  their  commissions,  or  when  the  commissions  of  two  or 
more  of  them  bear  the  same  date,  according  to  their  ages. 

§  217.  In  case  of  a  vacancy  in  the  office  of  chief  justice,  or  of  his 
inability  to  perform  the  duties  and  powers  of  his  office,  they  shall 
devolve  upon  the  associate  justice  who  is  first  in  precedence,  until 
such  disability  is  removed,  or  another  chief  justice  is  appointed 
and  duly  qualified.  This  provision  shall  apply  to  every  associate 
justice  who  succeeds  to  the  office  of  chief  justice. 

§  218.  The  chief  justice  of  the  Supreme  Court  of  the  United 
States  shall  receive  the  sum  of  fifteen  thousand  dollars  a  year, 
and  the  justices  thereof  shall  receive  the  sum  of  fourteen  thou- 
sand five  hundred  dollars  a  year  each,  to  be  paid  monthly. 

§  219.  The  supreme  court  shall  have  power  to  appoint  a  clerk 
and  a  marshal  for  said  court,  and  a  reporter  of  its  decisions. 

§  220.  The  clerk  of  the  supreme  court  shall,  before  he  enters 
upon  the  execution  of  his  office,  give  bond,  with  sufficient  sureties, 
to  be  approved  by  the  court,  to  the  United  States,  in  the  sum  of 
not  less  than  five  thousand  and  not  more  than  twenty  thousand 
dollars,  to  be  determined  and  regulated  by  the  attorney  general, 
faithfully  to  discharge  the  duties  of  his  office,  and  seasonably  to 
record  the  decrees,  judgments,  and  determinations  of  the  court. 
The  supreme  coui-t  may  at  any  time,  upon  the  motion  of  the  attor- 
ney general,  to  be  made  upon  thirty  days'  notice,  require  a  new 
bond,  or  a  bond  for  an  increased  amount  within  the  limits  above 
prescribed ;  and  the  failure  of  the  clerk  to  execute  the  same  shall 
vacate  his  office.  All  bonds  given  by  the  clerk  shall,  after  approval, 
be  recorded  in  liis  office,  and  copies  thereof  from  the  records,  cer- 
tified by  the  clerk  under  seal  of  the  court,  shall  be  competent  evi- 
dence in  any  court.  Tlie  original  l)onds  shall  be  filed  in  1hc  Hc- 
partmcnt  of  Jnst  ice. 


The  Judicial  Code  557 

§221.  One  or  more  deputies  of  the  clerk  of  the  supreme  court 
may  be  appointed  by  tlie  court  on  the  application  of  the  clerk,  and 
may  be  removed  at  the  pleasure  of  the  court.  In  case  of  the  death 
of  the  clerk,  his  deputy  or  deputies  shall,  unless  removed,  con- 
tinue in  office  and  perform  the  duties  of  the  clerk  in  his  name 
until  a  clerk  is  appointed  and  qualified;  and  for  the  defaults  or 
misfeasances  in  office  of  any  such  deputy,  whether  in  the  lifetime 
of  the  clerk  or  after  his  death,  the  clerk,  and  his  estate,  and  the 
sureties  on  his  official  bond  shall  be  liable ;  and  his  executor  or 
administrator  shall  have  such  remedy  for  any  such  defaults  or 
misfeasances  committed  after  his  death  as  the  clerk  would  be  en- 
titled to  if  the  same  had  occurred  in  his  lifetime. 

§  222.  The  records  and  proceedings  of  the  court  of  appeals,  ap- 
pointed previous  to  the  adoption  of  the  present  Constitution,  shall 
be  kept  in  the  office  of  the  clerk  of  the  supreme  court,  who  shall 
give  copies  thereof  to  any  person  requiring  and  paying  for  them, 
in  the  manner  provided  by  law  for  giving  copies  of  the  records 
and  proceedings  of  the  supreme  court ;  and  such  copies  shall  have 
like  faith  and  credit  with  all  other  proceedings  of  said  court. 

§  223.  The  supreme  court  is  authorized  and  empowered  to  pre- 
pare the  tables  of  fees  to  be  charged  by  the  clerk  thereof. 

§  224.  The  marshal  is  entitled  to  receive  a  salary  at  the  rate  of 
four  thousand  five  hundred  dollars  a  year.  He  shall  attend  the 
court  at  its  sessions ;  shall  serve  and  execute  all  process  and  orders 
issuing  from  it,  or  made  by  the  chief  justice  or  an  associate  justice 
in  pursuance  of  law;  and  shall  take  charge  of  all  property  of  the 
United  States  used  by  the  court  or  its  members.  With  the  approval 
of  the  chief  justice  he  may  appoint  assistants  and  messengers  to 
attend  the  court,  Avith  the  compensation  allowed  to  officers  of  the 
House  of  Representatives  of  similar  grade. 

§225.  The  reporter  shall  cause  the  decisions  of  the  supreme 
court  to  be  printed  and  published  within  eight  months  after  they 
are  made;  and  within  the  same  time  he  shall  deliver  three  hun- 
dred copies  of  the  volumes  of  said  reports  to  the  attorney  gen- 
eral. The  reporter  shall,  in  any  year  when  he  is  so  directed  by 
the  court,  cause  to  be  printed  and  published  a  second  volume  of 
said  decisions,  of  which  he  shall  deliver  a  like  number  of  copies  in 
like  manner  and  time. 


558  Appendix 

§  226.  The  reporter  shall  be  entitled  to  receive  from  the  Treas- 
ury an  annual  salary  of  four  thousand  five  hundred  dollars  when 
his  report  of  said  decisions  constitutes  one  volume,  and  an  addi-j 
tional  sum  of  one  thousand  two  hundred  dollars  when,  by  direc- 
tion of  the  court,  he  causes  to  be  printed  and  published  in  any 
year  a  second  volume ;  and  said  reporter  shall  be  annually  entitled 
to  clerk  hire  in  the  sum  of  one  thousand  two  hundred  dollars,  and 
to  office  rent,  stationery,  and  contingent  expenses  in  the  sum  of 
six  hundred  dollars :  Provided,  That  the  volumes  of  the  decisions 
of  the  court  heretofore  published  shall  be  furnished  by  the  reporter 
to  the  public  at  a  sum  not  exceeding  two  dollars  per  volume,  and 
those  hereafter  published  at  a  sum  not  exceeding  one  dollar  and 
seventy-five  cents  per  volume ;  and  the  number  of  volumes  now 
required  to  be  delivered  to  the  attorney  general  shall  be  furnished 
by  the  reporter  without  any  charge  therefor.  Said  salary  and 
compensation,  respectively,  shall  be  paid  only  when  he  causes 
such  decisions  to  be  printed,  published,  and  delivered  within  the 
time  and  in  the  manner  prescribed  by  law,  and  upon  the  condi- 
tion that  the  volumes  of  said  reports  shall  be  sold  by  him  to  the 
public  for  a  price  not  exceeding  one  dollar  and  seventy-five  cents 
a  volume. 

§227.  The  attorney  general  shall  distribute  copies  of  the  su- 
preme court  reports,  as  follows :  To  the  President,  the  justices  of 
the  supreme  court,  the  judges  of  the  commerce  court,  the  judges 
of  the  court  of  customs  appeals,  the  judges  of  the  circuit  courts  of 
appeals,  the  judges  of  the  district  courts,  the  judges  of  the  court 
of  claims,  the  judges  of' the  court  of  appeals  and  of  the  Supreme 
Court  of  the  District  of  Columbia,  the  judges  of  the  several  ter- 
ritorial courts,  the  secretary  of  State,  the  secretary  of  the  Treas- 
ury, the  secretary  of  War,  the  secretary  of  the  Navy,  the  secretary 
of  the  Interior,  the  postmaster  general,  the  attorney  general,  the 
secretary  of  Agriculture,  the  secretary  of  Commerce  and  Labor, 
the  solicitor  general,  the  assistant  to  the  attorney  general,  each 
assistant  attorney  general,  each  United  States  district  attorney, 
each  assistant  secretary  of  each  executive  department,  the  assist- 
ant postmasters  gciici-al,  the  secretary  of  the  Senate  for  the  use  of 
the  Senate,  tlie  clcik  of  the  Ilonsc  of  Representatives  for  the  use  of 
tlif  House  of  Rcincscnlalivcs,  the  govci-nors  of  the  ten-itories,  the 
solicitor  foi-  the  Dcparlincnt  of  Stale,  the  treasurer  of  the  United 
States,  the  solicitor  of  the  Trcasniy,  the  register  of  the  Treasury, 
the  coiriplrolh-r  of  the  'I'rcasiiry,  the  coiiipl  rollci-  oi'  the  Currency, 


The  Judicial  Code  559 

the  commissioner  of  Internal  Revenue,  the  director  of  the  Mint, 
each  of  the  six  auditors  in  the  Treasury  Department,  the  judge 
advocate  general,  War  Department,  the  paymaster  general.  War 
Department,  the  judge  advocate  general,  Navy  Department,  the 
commissioner  of  Indian  affairs,  the  commissioner  of  pensions, 
the  commissioner  of  the  General  Land  Office,  the  commis- 
sioner of  Patents,  the  commissioner  of  Education,  the  commis- 
sioner of  Labor,  the  commissioner  of  Navigation,  the  commissioner 
of  Corporations,  the  commissioner  general  of  Immigration,  the 
chief  of  the  Bureau  of  Manufactures,  the  director  of  the  Geolog- 
ical Survey,  the  director  of  the  Census,  the  forester.  Department  of 
Agriculture,  the  purchasing  agent,  Postoffice  Department,  the  In- 
terstate Commerce  Commission,  the  clerk  of  the  Supreme  Court 
of  the  United  States,  the  marshal  of  the  Supreme  Court  of  the 
United  States,  the  attorney  for  the  District  of  Columbia,  the  Naval 
Academy  at  Annapolis,  the  Military  Academy  at  West  Point,  and 
the  heads  of  such  other  executive  offices  as  may  be  provided  by 
law,  of  equal  grade  with  any  of  said  offices,  each  one  copy ;  to  the 
Law  Library  of  the  Supreme  Court,  twenty-five  copies;  to  the 
Law  Library  of  the  Department  of  the  Interior,  two  copies ;  to  the 
Law  Library  of  the  Department  of  Justice,  two  copies ;  to  the  sec- 
retary of  the  Senate  for  the  use  of  the  committees  of  the  Senate, 
twenty-five  copies ;  to  the  clerk  of  the  House  of  Representatives  for 
the  use  of  the  committees  of  the  House,  thirty  copies ;  to  the  mar- 
shal of  the  Supreme  Court  of  the  United  States,  as  custodian  of 
the  public  property  used  by  the  court,  for  the  use  of  the  justices 
thereof  in  the  conference  room,  robing  room,  and  court  room, 
three  copies;  to  the  secretary  of  War  for  the  use  of  the  proper 
courts  and  officers  of  the  Philippine  Islands  and  for  the  headquar- 
ters of  military  departments  in  the  United  States,  twelve  copies ; 
and  to  each  of  the  places  where  district  courts  of  the  United  States 
are  now  holden,  including  Hawaii,  and  Porto  Rico,  one  copy.  He 
shall  also  distribute  one  complete  set  of  said  reports,  and  one  set 
of  the  digests  thereof,  to  such  executive  officers  as  are  entitled 
to  receive  said  reports  under  this  section  and  have  not  already 
received  them,  to  each  United  States  judge  and  to  each  United 
States  district  attorney  who  has  not  received  a  set,  to  each  of  the 
places  where  district  courts  are  now  held  to  which  said  reports 
have  not  been  distributed,  and  to  each  of  the  places  at  which  a 
district  court  may  hereafter  be  held,  the  edition  of  said  reports 
and  digests  to  be  selected  by  the  judge  or  officer  receiving  them. 
No  distribution  of  reports  and  digests  under  this  section  shall  be 


560  Appendix 

made  to  any  place  where  the  court  is  held  in  a  building  not  owned 
by  the  United  States,  unless  there  be  at  such  place  a  United  States 
officer  to  whose  responsible  custody  they  can  be  committed.  The 
clerks  of  said  courts  (except  the  supreme  court)  shall  in  all  cases 
keep  said  reports  and  digest  for  the  use  of  the  courts  and  of  the 
officers  thereof.  Such  reports  and  digest  shall  remain  the  property 
of  the  United  States,  and  shall  be  preserved  by  the  officers  above 
named  and  by  them  turned  over  to  their  successors  in  office. 

By  the  Act  of  March  4,  1911,  c.  285  (36  Stat.  L.  1419),  the  Secretary  of 
the  Interior  distributes  reports  of  the  Supreme  Court  to  the  Circuit  Courts  of 
Appeals. 

§  228.  The  publishers  of  the  decisions  of  the  supreme  court  shall 
deliver  to  the  attorney  general,  in  addition  to  the  three  hundred 
copies  delivered  by  the  reporter,  such  number  of  copies  of  each 
report  heretofore  published,  as  the  attorney  general  may  require, 
for  which  he  shall  pay  not  more  than  two  dollars  per  volume,  and 
such  number  of  copies  of  each  report  hereafter  published  as  he 
may  require,  for  which  he  shall  pay  not  more  than  one  dollar  and 
seventy-five  cents  per  volume.  The  attorney  general  shall  include 
in  his  annual  estimates  submitted  to  Congress,  an  estimate  for  the 
current  volumes  of  such  reports,  and  also  for  the  additional  sets 
of  reports  and  digests  required  for  distribution  under  the  section 
last  preceding. 

§  229.  The  attorney  general  is  authorized  to  procure  complete 
sets  of  the  Federal  Reporter  or,  in  his  discretion,  other  publication 
containing  the  decisions  of  the  circuit  courts  of  appeals,  circuit 
courts,  and  district  courts,  and  digests  thereof,  and  also  future  vol- 
umes of  the  same  as  issued,  and  distribute  a  copy  of  each  such 
report  and  digest  to  each  place  where  a  circuit  court  of  appeals, 
or  a  district  court,  is  now  or  may  hereafter  regularly  be  held,  and 
to  the  Supreme  Court  of  the  United  States,  the  court  of  claims, 
the  court  of  customs  appeals,  the  commerce  court,  the  court  of  ap- 
peals and  the  Supreme  Court  of  the  District  of  Columbia,  the 
attorney  general,  the  solicitor  general,  the  solicitor  of  the  Treas- 
ury, the  assistant  attorney  general  for  the  Department  of  the 
Interior,  the  coiiimissioner  of  Patents,  and  the  Interstate  Com- 
merce Connnission  ;  and  to  the  secretary  of  the  Senate,  for  the 
use  of  the  Senate,  and  to  the  clerk  of  tlie  House  of  Representa- 
tives, for  the  use  of  the  House  of  Representatives,  not  more  than 
three  sets  eaeh.     Whenever  anv  sueli  court  room.  otKice,  or  officer 


The  Judicial  Code  561 

shall  have  a  partial  or  complete  set  of  auy  such  reports,  or  digests, 
already  purchased  or  owned  by  the  United  States,  the  attorney 
general  shall  distribute  to  such  court  room,  office  or  officer,  only 
sufficient  volumes  to  make  a  complete  set  thereof.  No  distribu- 
tion of  reports  or  digests  under  this  section  shall  be  made  to  any 
place  where  the  court  is  held  in  a  building  not  owned  by  the 
United  States,  unless  there  be  at  such  place  a  United  States  officer 
to  whose  responsible  custody  they  can  be  committed.  The  clerks 
of  the  courts  (except  the  supreme  court)  to  which  the  reports  and 
digests  are  distributed  under  this  section,  shall  keep  such  reports 
and  digests  for  the  use  of  the  courts  and  the  officers  thereof.  All 
reports  and  digests  distributed  under  the  provisions  of  this  sec- 
tion shall  be  and  remain  the  property  of  the  United  States  and, 
before  distribution,  shall  be  plainly  marked  on  their  covers  with  the 
words  "The  Property  of  the  United  States,"  and  shall  be  trans- 
mitted by  the  officers  receiving  them  to  their  successors  in  office. 
Not  to  exceed  two  dollars  per  volume  shall  be  paid  for  the  back  and 
current  volumes  of  the  Federal  Reporter  or  other  publication 
purchased  under  the  provisions  of  this  section,  and  not  to  exceed 
five  dollars  per  volume  for  the  digest,  the  said  money  to  be  dis- 
bursed under  the  direction  of  the  attorney  general ;  and  the  attor- 
ney' general  shall  include  in  his  annual  estimates  submitted  to 
Congress,  an  estimate  for  the  back  and  current  volumes  of  such 
reports  and  digests,  the  distribution  of  which  is  provided  for  in 
this  section. 

§  230.  The  supreme  court  shall  hold  at  the  seat  of  government, 
one  term  annually,  commencing  on  the  first  Monday  in  October, 
and  such  adjourned  or  special  terms  as  it  may  find  necessary  for 
the  dispatch  of  business. 

Amended  by  the  Act  of  Sept.  6,  1916,  c.  448  (39  Stat.  L.  726). 

§  231.  If,  at  any  session  of  the  supreme  court,  a  quorum  does 
not  attend  on  the  day  appointed  for  holding  it,  the  justices  who 
do  attend  may  adjourn  the  court  from  day  to  day  for  twenty 
days  until  after  said  appointed  time,  unless  thei-e  be  sooner  a 
quorum.  If  a  quorum  does  not  attend  within  said  twenty  days,  the 
business  of  the  court  shall  be  continued  over  till  the  next  appointed 
session ;  and  if,  during  a  term,  after  a  quorum  has  assembled,  less 
than  that  number  attend  on  any  day,  the  justices  attending  may 
adjourn  the  court  from  day  to  day  until  ther6  is  a  quorum,  or  may 
adjourn  without  day. 

Wheaton  C.  F.  P.— 36 


562  Appendix 

§232.  The  justices  attending  at  any  term,  when  less  than  a 
quorum  is  present,  may,  within  the  twenty  days  mentioned  in  the 
preceding  section,  make  all  necessary  orders  touching  any  suit, 
proceeding,  or  process,  depending  in  or  returned  to  the  court, 
preparatory  to  the  hearing,  trial,  or  decision  thereof. 
\ 

§  233.  The  supreme  court  shall  have  exclusive  jurisdiction  of  all 
controversies  of  a  civil  nature  where  a  state  is  a  party,  except 
between  a  state  and  its  citizens,- or  between  a  state  and  citizens  of 
other  states,  or  aliens,  in  which  latter  cases  it  shall  have  original, 
but  not  exclusive,  jurisdiction.  And  it  shall  have  exclusively  all 
such  jurisdiction  of  suits  or  proceedings  against  ambassadors  or 
other  public  ministers,  or  their  domestics  or  domestic  servants,  as 
a  court  of  law  can  have  consistently  with  the  law  of  nations;  and 
original,  but  not  exclusive,  jurisdiction,  of  all  suits  brought  by 
ambassadors,  or  other  public  ministers,  or  in  which  a  consul  or 
vice  consul  is  a  party. 

§234.  The  supreme  court  shall  have  power  to  issue  writs  of 
prohibition  to  the  district  courts,  when  proceeding  as  courts  of 
admiralty  and  maritime  jurisdiction ;  and  writs  of  mandamus,  in 
cases  warranted  by  the  principles  and  usages  of  law,  to  any  courts 
appointed  under  the  authority  of  the  United  States,  or  to  persons 
holding  office  under  the  authority  of  the  United  States,  where  a 
stale,  or  an  ambassador,  or  other  public  minister,  or  a  consul,  or 
vice  consul  is  a  party. 

§  235.  The  trial  of  issues  of  fact  in  the  supreme  court,  in  all  ac- 
tions at  law  against  citizens  of  the  United  States,  shall  be  by  jury. 

§236.  The  supreme  court  shall  have  appellate  jurisdiction  in 
the  cases  hereinafter  specially  provided  for. 

§  237.  A  final  judgment  or  decree  in  any  suit  in  the  highest 
court  of  a  State  in  which  a  decision  in  the  suit  could  be  had, 
whore  is  drawn  in  question  the  validity  of  a  treaty  or  statute  of, 
or  an  autliority  exercised  under  tbe  TTnited  States,  and  the  de- 
cision is  against  their  validity;  or  whore  is  drawn  in  question  the 
validity  of  a  statute  of,  or  an  autliority  exorcised  under  any  State, 
on  the  ground  of  their  being  ro])ugnant  to  the  Constitution, 
treaties,  or  laws  of  the  United  States,  and  the  decision  is  in  favor 
of  thoir  validilv.  niav  V)o  ro-oxaminod  and  reversed  or  af^rmod  in 


The  Judicial  Code  563 

the  Supreme  Court  upon  a  writ  of  error.  The  writ  shall  have  the 
same  effect  as  if  the  judgment  or  decree  complained  of  had  been 
rendered  or  passed  in  a  court  of  the  United  States.  The  Supreme 
Court  may  reverse,  modify,  or  affirm  the  judgment  or  decree  of 
such  State  court,  and  may,  in  its  discretion,  award  execution  or 
remand  the  same  to  the  court  from  which  it  was  removed  by  the 
writ. 

It  shall  be  competent  for  the  Supreme  Court,  by  certiorari  or 
otherwise,  to  require  that  there  be  certified  to  it  for  review  and 
determination  with  the  same  power  and  authority  and  with  like 
effect  as  if  brought  up  by  writ  of  error,  any  cause  wherein  a  final 
judgment  or  decree  has  been  rendered  or  passed  by  the  highest 
court  of  a  State  in  which  a  decision  could  be  had,  where  is  drawn 
in  question  the  validity  of  a  treaty  or  statute  of,  or  an  authority 
exercised  under  the  United  States,  and  the  decision  is  in  favor  of 
their  validity ;  or  where  is  drawn  in  question  the  validity  of  a 
statute  of,  or  an  authority  exercised  under  any  State,  on  the 
ground  of  their  being  repugnant  to  the  Constitution,  treaties,  or 
laws  of  the  United  States,  and  the  decision  is  against  their  validity ; 
or  where  any  title,  right,  privilege,  or  immunity  is  claimed  under 
the  Constitution,  or  any  treaty  or  statute  of,  or  commission  held 
or  authority  exercised  under  the  United  States,  and  the  decision  is 
either  in  favor  of  or  against  the  title,  right,  privilege,  or  immunity 
especially  set  up  or  claimed,  by  either  party,  under  such  Constitu- 
tion, treaty,  statute,  commission,  or  authority. 

Amended  by  the  Acts  of  Dec.  23,  1914,  c.  2  (38  Stat.  L.  79T)),  and  Sept.  6, 
1916,  c.  448  (39  Stat.  L.  726). 

§  238.  Appeals  and  writs  of  error  may  be  taken  from  the  district 
courts,  including  the  United  States  District  Court  for  Hawaii  and 
the  United  States  District  Court  for  Porto  Rico,  direct  to  the 
supreme  court  in  the  following  cases :  In  any  case  in  which  the 
jurisdiction  of  the  court  is  in  issue,  in  which  ease  the  question  of 
jurisdiction  alone  shall  be  certified  to  the  supreme  court  from  the 
court  below  for  decision ;  from  the  final  sentences  and  decrees  in 
prize  causes;  in  any  case  that  involves  the  construction  or  appli- 
cation of  the  Constitution  of  the  United  States;  in  any  case  in 
which  the  constitutionality  of  any  law  of  the  United  States,  or 
the  validity  or  construction  of  any  treaty  made  under  its  authority 
is  drawn  in  question ;  and  in  any  case  in  which  the  constitution  or 
law  of  a  state  is  claimed  to  be  in  contravention  of  the  Constitution 
of  the  United  States. 

Amended  by  the  Act  of  Jan,  28,  1915.  c.  22  (38  Stat.  L.  804). 


564  Appendix 

§  239.  In  any  case  within  its  appellate  jurisdiction,  as  defined  in 
section  one  hundred  and  twenty-eight,  the  circuit  court  of  appeals 
at  any  time  may  certify  to  the  Supreme  Court  of  the  United  States 
any  questions  or  propositions  of  law  concerning  which  it  desires 
the  instruction  of  that  court  for  its  proper  decision;  and  there- 
upon the  supreme  court  may  either  give  its  instruction  on  the 
questions  and  propositions  certified  to  it,  which  shall  be  binding 
upon  the  circuit  court  of  appeals  in  such  case,  or  it  may  require 
that  the  whole  record  and  cause  be  sent  up  to  it  for  its  considera- 
tion, and  thereupon  shall  decide  the  whole  matter  in  controversy 
in  the  same  manner  as  if  it  had  been  brought  there  for  review  by 
writ  of  error  or  appeal. 

§240.  In  any  ease,  civil  or  criminal,  in  which  the  judgment  or 
decree  of  the  circuit  court  of  appeals  is  made  final  by  the  provisions 
of  this  title  it  shall  be  competent  for  the  supreme  court  to  require, 
by  certiorari  or  otherwise,  upon  the  petition  of  any  party  thereto, 
any  such  case  to  be  certified  to  the  supreme  court  for  its  review 
and  determination,  with  the  same  power  and  authority  in  the  case 
as  if  it  had  been  carried  by  appeal  or  writ  of  error  to  the  supreme 
court. 

§  241.  In  any  case  in  which  the  judgment  or  decree  of  the  cir- 
cuit court  of  appeals  is  not  made  final  by  the  provisions  of  this 
title,  there  shall  be  of  right  an  appeal  or  writ  of  error  to  the  Su- 
preme Court  of  the  United  States  where  the  matter  in  controversy 
shall  exceed  one  thousand  dollars,  besides  costs. 

§  242.  An  appeal  to  the  supreme  court  shall  be  allowed  on  behalf 
of  the  United  States,  from  all  judgments  of  the  court  of  claims 
adverse  to  the  United  States,  and  on  behalf  of  the  plaintiff  in  any 
case  where  the  amount  in  controversy  exceeds  three  thousand  dol- 
lars, or  where  liis  claim  is  forfeited  to  the  United  States  by  the 
judgment  of  said  court  as  provided  in  section  one  hundred  and 
seventy-two. 

§  243.  All  appeals  from  the  court  of  claims  shall  be  taken  within 
jiiiH'ly  days  after  the  jiulgmeut  is  rendered,  and  shall  be  allowed 
iindrr  sni'b  rcgiilalions  as  the  supreme  court  may  direct. 

§244.  Writs  of  error  and  apjieals  from  the  final  judgments  and 
dccrcrs  (»f  tlu'  suprcinc  couit   of,  aiul   the  United  States  District 


TuE  Judicial  Code  565 

Court  for,  Porto  Rico,  may  be  taken  and  prosecuted  to  the  Supreme 
Court  of  the  United  States,  in  any  case  wherein  is  involved  the 
validity  of  any  copyright,  or  in  which  is  drawn  in  question  the 
validity  of  a  treaty  or  statute  of,  or  authority  exercised  under,  the 
United  States,  or  wherein  the  Constitution  of  the  United  States, 
or  a  treaty  thereof,  or  an  act  of  Congress  is  brought  in  question 
and  the  right  claimed  thereunder  is  denied,  without  regard  to  the 
sum  or  value  of  the  matter  in  dispute;  and  in  all  other  cases  in 
which  the  sum  or  value  of  the  matter  in  dispute,  exclusive  of  costs, 
to  be  ascertained  by  the  oath  of  either  party  or  of  other  competent 
witnesses,  exceeds  the  sum  or  value  of  five  thousand  dollars.  Such 
writs  of  error  and  appeals  shall  be  taken  within  the  same  time,  in 
the  same  manner,  and  under  the  same  regulations  as  writs  of 
error  and  appeals  are  taken  to  the  Supreme  Court  of  the  United 
States  from  the  district  courts, 
Eepealed  by  the  Act   of  Jan.  28,  1915,  c.  22  (38  Stat.  L.  804). 

§  245.  Writs  of  error  and  appeals  from  the  final  judgments  and 
decrees  of  the  supreme  courts  of  the  territories  of  Arizona  and 
New  Mexico  may  be  taken  and  prosecuted  to  the  Supreme  Court  of 
the  United  States  in  any  ease  wherejn  is  involved  the  validity  of 
any  copyright,  or  in  which  is  drawn  in  question  the  validity  of  a 
treaty  or  statute  of,  or  authority  exercised  under,  the  United 
States,  without  regard  to  the  sum  or  value  of  the  matter  in  dis- 
pute; and  in  all  other  cases  in  w-hich  the  sum  or  value  of  the 
matter  in  dispute,  exclusive  of  costs,  to  be  ascertained  by  the  oath 
of  either  party  or  of  other  competent  witnesses,  exceeds  the  sum 
or  value  of  five  thousand  dollars. 

§  246.  Writs  of  error  and  appeals  from  the  final  judgments  and 
decrees  of  the  Supreme  Court  of  the  territory  of  Hawaii  and  of  the 
Supreme  Court  of  Porto  Rico  may  be  taken  and  prosecuted  to  the 
Supreme  Court  of  the  United  States,  within  the  same  time,  in  the 
same  manner,  under  the  same  regulations,  and  in  the  same  classes 
of  cases,  in  which  writs  of  error  and  appeals  from  the  final  judg- 
ments and  decrees  of  the  highest  court  of  a  state  in  which  a  de- 
cision in  the  suit  could  be  had,  may  be  taken  and  prosecuted  to 
the  Supreme  Court  of  the  United  States  under  the  provisions  of 
section  two  hundred  and  thirty-seven ;  and  in  all  other  cases,  civil 
or  criminal,  in  the  Supreme  Court  of  the  territory  of  Hawaii  or 
the  Supreme  Court  of  Porto  Rico,  it  shall  be  competent  for  the 
Supreme  Court  of  the  United  States  to  require  by  certiorari,  upon 


56d  Appendix 

the  petition  of  any  party  thereto,  that  the  case  be  certified  to  it, 
after  final  judgment  or  decree,  for  review  and  determination,  with 
the  same  power  and  authority  as  if  taken  to  that  court  by  appeal 
or  writ  or  error;  but  certiorari  shall  not  be  allowed  in  any  such 
case  unless  the  petition  therefor  is  presented  to  the  Supreme  Court 
of  the  United  States  within  six  months  from  the  date  of  such 
judgment  or  decree. 

Writs  of  error  and  appeals  from  the  final  judgments  and  de- 
crees of  the  Supreme  Courts  of  the  territory  of  Hawaii  and  of 
Porto  Rico,  wherein  the  amount  involved,  exclusive  of  costs,  to  be 
ascertained  by  the  oath  of  either  party  or  of  other  competent  wit- 
nesses, exceeds  the  value  of  $5,000,  may  be  taken  and  prosecuted 
in  the  circuit  courts  of  appeals. 

Amended  by  the  Act  of  January  28,  1915,  c.  22  (38  Stat.  L.  804). 

§  247.  Appeals  and  writs  of  error  may  be  taken  and  prosecuted 
from  final  judgments  and  decrees  of  the  district  court  for  the 
district  of  Alaska  or  for  any  division  thereof,  direct  to  the  Su- 
preme Court  of  the  United  States,  in  the  following  cases :  In  prize 
cases;  and  in  all  eases  which  involve  the  construction  or  applica- 
tion of  the  Constitution  of  the  United  States,  or  in  which  the  con- 
stitutionality of  any  law  of  the  United  States  or  the  validity  or 
construction  of  any  treaty  made  under  its  authority-  is  drawn  in 
question,  or  in  which  the  constitution  or  law  of  a  state  is  claimed 
to  be  in  contravention  of  the  Constitution  of  the  United  States. 
Such  writs  of  error  and  appeal  shall  be  taken  within  the  same 
time,  in  the  same  manner,  and  under  the  same  regulations  as 
writs  of  error  and  appeals  are  taken  from  the  district  courts  to  the 
supreme  court. 

§248.  The  Supreme  Court  of  the  United  States  shall  have  juris- 
diclion  to  review,  revise,  reverse,  modify,  or  affirm  the  final  judg- 
ments and  decrees  of  the  Supreme  Court  of  the  Philippine  Islands 
in  all  actions,  cases,  causes,  and  proceedings  now  pending  therein 
or  hereafter  determined  tliereby,  in  wliich  the  Constitution,  or 
any  statute,  treaty,  title,  right,  or  privilege  of  the  United  States 
is  involved,  or  in  causes  in  which  the  value  in  controversy  exceeds 
twenty-five  thousand  dolhirs,  or  in  which  the  title  or  possession  of 
real  estate  exceeding  in  value  of  llic  sum  of  twenty-five  thousand 
dollars,  to  be  a.scertained  by  tlic  oath  of  either  party  or  of  other 
cnnipctent  witnesses,  is  involved  or  brought  in  ([uestion  ;  and  such 
final  JMdgnicnls  or  decrees  may  and  can  be  i-cviewed,  I'cvised,  re- 


The  Judicial  Code  567 

versed,  modified,  or  affirmed  by  said  Supreme  Court  of  the  United 
States  on  appeal  or  writ  of  error  by  the  party  aggrieved,  within 
the  same  time,  in  the  same  manner,  under  the  same  regulations, 
and  by  the  same  procedure,  as  far  as  applicable,  as  the  final  judg- 
ments and  decrees  of  the  district  courts  of  the  United  States, 

See  the  Act  of  Aug.  29.  1916,  c.  416;  §  27  (39  Stat.  L.  555)  and  the  Act  of 
September  6,  1916,  c.  448,  §5   (39  Stat.  L.  727). 

§  249.  In  all  cases  where  the  judgment  or  decree  of  any  court  of 
a  territory  might  be  reviewed  by  the  supreme  court  on  writ  of 
error  or  appeal,  such  writ  of  error  or  appeal  may  be  taken,  within 
the  time  and  in  the  manner  provided  by  laAV,  notwithstanding  such 
territory  has,  after  such  judgment  or  decree,  been  admitted  as  a 
state ;  and  the  supreme  court  shall  direct  the  mandate  to  such  court 
as  the  nature  of  the  writ  of  error  or  appeal  requires. 

§  250.  Any  final  judgment  or  decree  of  the  Court  of  Appeals  of 
the  District  of  Columbia  may  be  reexamined  and  affirmed,  reversed, 
or  modified  by  the  Supreme  Court  of  the  United  States,  upon  writ 
of  error  or  appeal,  in  the  following  cases : 

First.  In  cases  in  which  the  jurisdiction  of  the  trial  court  is  in 
issue;  but  when  any  such  case  is  not  otherwise  reviewable  in  said 
supreme  court,  then  the  question  of  jurisdiction  alone  shall  be 
certified  to  said  supreme  court  for  decision. 

Second.    In  prize  cases. 

Third.  In  cases  involving  the  construction  or  application  of  the 
Constitution  of  the  United  States,  or  the  constitutionality  of  any 
law  of  the  United  States,  or  the  validity  or  construction  of  any 
treaty  made  under  its  authority. 

Fourth.  In  cases  in  which  the  constitution,  or  any  law  of  a 
state,  is  claimed  to  be  in  contravention  of  the  Constitution  of  the 
United  States. 

Fifth.  In  cases  in  which  the  validity  of  any  authority  exercised 
under  the  United  States,  or  the  existence  or  scope  of  any  power  or 
duty  of  an  officer  of  the  United  States  is  drawn  in  question. 

Sixth.  In  cases  in  which  the  construction  of  any  law  of  the 
United  States  is  drawn  in  question  by  the  defendant. 

Except  as  provided  in  the  next  succeeding  section,  the  judg- 
ments and  decrees  of  said  court  of  appeals  shall  be  final  in  all 
cases  arising  under  the  patent  laws,  the  copyright  laws,  the  rev- 
enue laws,  the  criminal  laws,  and  in  admiralty  cases ;  and,  except 
as  provided  in  the  next  succeeding  section,  the  judgments  and  de- 


568  Appendix 

crees  of  said  court  of  appeals  shall  be  final  in  all  cases  not  re- 
viewable as  hereinbefore  provided. 

Writs  of  error  and  appeals  shall  be  taken  within  the  same  time, 
in  the  same  manner,  and  under  the  same  re^ilations  as  writs  of 
error  and  appeals  are  taken  from  the  circuit  courts  of  appeals  to 
the  Supreme  Court  of  the  United  States. 

§251.  In  any  case  in  which  the  judgment  or  decree  of  said 
court  of  appeals  is  made  final  by  the  section  last  preceding,  it 
shall  be  competent  for  the  Supreme  Court  of  the  United 
States  to  require,  by  certiorari  or  otherwise,  any  such  case  to  be 
certified  to  it  for  its  review  and  determination,  with  the  same 
power  and  authority  in  the  case  as  if  it  had  been  carried  by  writ 
of  error  or  appeal  to  said  supreme  court.  It  shall  also  be  com- 
petent for  said  court  of  appeals,  in  any  case  in  which  its  judg- 
ment or  decree  is  made  final  under  the  section  last  preceding,  at 
any  time  to  certify  to  the  Supreme  Court  of  the  United  States 
any  questions  or  propositions  of  law  concerning  which  it  desires 
the  instruction  of  that  court  for  their  proper  decision ;  and  there- 
upon the  supreme  court  may  either  give  its  instruction  on  the 
questions  and  propositions  certified  to  it,  which  shall  be  binding 
upon  said  court  of  appeals  in  such  case,  or  it  may  require  that 
the  whole  record  and  cause  be  sent  up  to  it  for  its  consideration, 
and  thereupon  shall  decide  the  whole  matter  in  controversy  in 
the  same  manner  as  if  it  had  been  brought  there  for  review  by 
writ  of  error  or  appeal. 

§252.  The  Supreme  Court  of  the  United  States  is  hereby  in- 
vested with  appellate  jurisdiction  of  controversies  arising  in  bank- 
ruptcy proceedings,  from  the  courts  of  bankruptcy,  from  which 
it  has  appellate  jurisdiction  in  other  cases;  and  shall  exercise  a 
like  jurisdiction  from  courts  of  bankruptcy  not  within  any  organ- 
ized circuit  of  the  United  States  and  from  the  Supreme  Court  of 
the  District  of  Columbia. 

An  appeal  may  be  taken  to  the  Supreme  Court  of  the  United 
States  from  any  final  decision  of  a  court  of  appeals  allowing  or 
rejecting  a  claim  under  the  laws  relating  to  bankruptcy,  under 
such  rules  and  within  such  time  as  may  be  prescribed  by  said 
supreme  court,  in  tlie  following  cases  and  no  other: 

First.  Where  the  anionnl  in  controversy  exceeds  the  sum  of 
two   lliousr'incl    (lolhirs,   aiul    llie   (picstion    involved   is   one   which 


The  Judicial  Code  569 

might  have  been  taken  on  appeal  or  writ  of  error  from  the  highest 
court  of  a  state  to  the  Supreme  Court  of  the  United  States;  or 

Second.  Where  some  justice  of  the  supreme  court  shall  certify 
that  in  his  opinion  the  determination  of  the  (piestion  involved  in 
the  allowance  or  rejection  of  such  claim  is  essential  to  a  uniform 
construction  of  the  laws  relating  to  bankruptcy  throughout  the 
United  States. 

Controversies  may  be  certified  to  the  Supreme  Court  of  the 
United  States  from  other  courts  of  the  United  States,  and  the 
former  court  may  exercise  jurisdiction  thereof,  and  may  issue 
writs  of  certiorari  pursuant  to  the  provisions  of  the  United  States 
laws  now  in  force  or  such  as  may  be  hereafter  enacted. 

§  253.  Cases  on  writ  of  error  to  revise  the  judgment  of  a  state 
court  in  any  criminal  case  shall  have  precedence  on  the  docket 
of  the  supreme  court,  of  all  cases  to  which  the  Government  of  the 
United  States  is  not  a  party,  excepting  only  such  cases  as  the 
court,  in  its  discretion,  may  decide  to  be  of  public  importance. 

§  254.  There  shall  be  taxed  against  the  losing  party  in  each  and 
every  cause  pending  in  the  supreme  court  the  cost  of  printing 
the  record  in  such  case,  except  when  the  judgment  is  against  the 
United  States. 

§  255.  Any  woman  who  shall  have  been  a  member  of  the  bar  of 
the  highest  court  of  any  state  or  territory,  or  of  the  Court  of 
Appeals  of  the  District  of  Columbia,  for  the  space  of  three  years,. 
and  shall  have  maintained  a  good  standing  before  such  court,  and 
who  shall  be  a  person  of  good  moral  character,  shall,  on  motion, 
and  the  production  of  such  record,  be  admitted  to  practice  before 
the  Supreme  Court  of  the  United  States. 


CHAPTER  XI 

PROVISIONS  COMMON  TO  MORE  THAN  ONE  COURT 

5  256.  Cases  in  which  jurisdiction  of  United  States  coiirts  shall  be  exclusive 

of  States  courts. 
§  257.  Oath  of  United  States  judges. 
§  258.  Judges  prohibited  from  practicing  law. 
§  259.  Traveling    expenses,    etc.,    of   circuit    justices   and    circuit   and   district 

judges. 


570  Appendix 

§  260.  Salary  of  judges  after  resignation. 

§  261.  Writs  of  ne  exeat. 

§  262.  Power  to  issue  writs. 

§  263.  Temporary  restraining  orders. 

§  264.  Injunctions — In  what  cases  judge  may  grant. 

§  265.  Injunctions  to  stay  proceedings  in  State  courts. 

§  266.  Injunctions  based  upon  alleged  unconstitutionality  of  State  statutes — 

When  and  by  whom  may  be  granted. 
§  2-67.  When  suits  in  equity  may  be  maintained. 
§  268.  Power  to  administer  oaths  and  punish  contempts. 
§  269.  New  trials. 

§  270.  Power  to  hold  to  security  for  the  peace  and  good  behavior. 
§  271.  Power  to  enforce  awards  of  foreign  consuls,  etc.,  in  certain  cases. 
§  272.  Parties  may  manage  their  causes  personally  or  by  counsel. 
§  273.  Certain  officers  forbidden  to  act  as  attorneys. 
§  274.  Penalty  for  violating  preceding  section. 
§  274a.  Amendment  of  suit  brought  on  wrong  side  of  court. 
§  274b.  Equitable  defenses  interposed  in  actions  at  law. 
§  274c.  Amendment  where  diverse  citizenship  is  defectively  alleged. 

§  256.  The  jurisdiction  vested  in  the  courts  of  the  United  States 
in  the  cases  and  proceedings  hereinafter  mentioned,  shall  be  exclu- 
sive of  the  courts  of  the  several  states : 

First.  Of  all  crimes  and  offenses  cognizable  under  the  authority 
of  the  United  States. 

Second.  Of  all  suits  for  penalties  and  forfeitures  incurred  un- 
der the  laws  of  the  United  States. 

Third.  Of  all  civil  causes  of  admiralty  and  maritime  jurisdic- 
tion ;  saving  to  suitors,  in  all  cases,  the  right  of  a  common-law 
remedy,  where  the  common  law  is  competent  to  give  it,  and  to 
claimants  the  rights  and  remedies  under  the  worlanen's  com- 
pensation law  of  any  state. 

Fourth.  Of  all  seizures  under  the  laws  of  the  United  States, 
on  land  or  on  waters  not  within  admiralty''  and  maritime  juris- 
diction; of  all  prizes  brought  into  the  United  States;  and  of  all 
proceedings  for  the  condemnation  of  property  taken  as  prize. 

Fifth.  Of  all  cases  arising  under  the  patent-right,  or  copyright 
laws  of  the  United  States. 

Si.xth.     Of  all  matters  and  proceedings  in  bankruptcy. 

Seventh.  Of  all  conti'oversies  of  a  civil  natui-e,  where  a  state 
is  a  paHy,  except  between  a  state  and  its  citizens,  or  between  a 
state  find  citizens  of  other  states,  or  aliens. 

Eighth.  Of  all  suits  and  i)r()cecdings  against  ambassadors,  or 
other  puhlic  ministers,  or  thcii-  domestics,  or  domestic  servants,  or 
against  consuls  or  vice-consuls. 

Amcndfd  by  tli».  AH  of  Oct.  0,  1D17,  c.  97  (-10  St.at.  L.  .ig.'j). 


The  Judicial  Code  571 

§  257.  The  justices  of  the  supreme  court,  the  circuit  judges,  and 
the  district  judges,  hereafter  appointed,  shall  take  the  following 
oath  before  they  proceed  to  perform  the  duties  of  their  respective 

offices:     "I,  ,  do  solemnly  swear    (or  affirm) 

that  I  will  administer  justice  without  respect  to  persons,  and  do 
equal  right  to  the  poor  and  to  the  rich,  and  that  I  will  faithfully 
and  impartially  discharge  and  perform  all  the  duties  incumbent 

upon  me  as according  to  the  best  of  my  abilities  and 

understanding,  agreeably  to  the  Constitution  and  laws  of  the 
United  States:  So  help  me  God." 

§  258.  It  shall  not  be  lawful  for  any  judge  appointed  under  the 
authority  of  the  United  States  to  exercise  the  profession  or  employ- 
ment of  counsel  or  attorney,  or  to  be  engaged  in  the  practice  of 
the  law.  Any  person  offending  against  the  prohibition  of  this 
section  shall  be  deemed  guilty  of  a  high  misdemeanor. 

§  259.  The  circuit  justices,  the  circuit  and  district  judges  of  the 
United  States,  and  the  judges  of  the  district  courts  of  the  United 
States  in  Alaska,  Hawaii  and  Porto  Rico,  shall  each  be  allowed 
and  paid  his  necessary  expenses  of  travel,  and  his  reasonable 
expenses  (not  to  exceed  ten  dollars  per  day)  actually  incurred 
for  maintenance,  consequent  upon  his  attending  court  or  transact- 
ing other  official  business  in  pursuance  of  law  at  any  place  other 
than  his  official  place  of  residence,  said  expenses  to  be  paid  by 
the  marshal  of  the  district  in  which  such  court  is  held  or  official 
business  transacted,  upon  the  written  certificate  of  the  justice  or 
judge.  The  official  place  of  residence  of  each  justice  and  of 
each  circuit  judge  while  assigned  to  the  commerce  court  shall  be 
at  Washington ;  and  the  official  place  of  residence  of  each  circuit 
and  district  judge,  and  of  each  judge  of  the  district  courts  of  the 
United  States  in  Alaska,  Hawaii,  and  Porto  Rico,  shall  be  at  that 
place  nearest  his  actual  residence  at  which  either  a  circuit  court 
of  appeals  or  a  district  court  is  regularly  held.  Every  such  judge 
shall,  upon  his  appointment,  and  from  time  to  time  thereafter 
whenever  he  may  change  his  official  residence,  in  writing  notify 
the  Department  of  Justice  of  his  official  place  of  residence. 

§  260.  That  when  any  judge  of  any  court  of  the  United  States, 
appointed  to  hold  his  office  during  good  behavior,  resigns  his  office 
after  having  held  a  commission  or  commissions  as  judge  of  any 
such  court  or  courts  at  least  ten  years  continuously,  and  having 


572  Appendix 

attained  the  age  of  seventj'^  years,  he  shall,  during  the  residue  of 
his  natural  life,  receive  the  salary  which  is  payable  at  the  time 
of  his  resignation  for  the  office  that  he  held  at  the  time  of  his 
resignation.  But  instead  of  resigning,  any  judge  other  than  a 
justice  of  the  Supreme  Court,  who  is  qualified  to  resign  under  the 
foregoing  provisions  may  retire,  upon  the  salary  of  which  he  is 
then  in  receipt,  from  regular  active  service  on  the  bench,  and 
the  President  shall  thereupon  be  authorized  to  appoint  a  successor; 
but  a  judge  so  retiring  may  nevertheless  be  called  upon  by  the 
senior  circuit  judge  of  that  circuit  and  be  by  him  authorized  to 
perform  such  judicial  duties  in  such  circuit  as  such  retired  judge 
may  be  willing  to  undertake,  or  he  may  be  called  upon  by  the 
Chief  Justice  and  be  by  him  authorized  to  perform  such  judicial 
duties  in  any  other  circuit  as  such  retired  judge  may  be  willing 
to  undertake,  or  he  may  be  called  upon  either  by  the  presiding 
judge  or  senior  judge  of  any  other  such  court  and  be  by  him 
authorized  to  perform  such  judicial  duties  in  such  court  as  such 
retired  judge  may  be  w^illing  to  undertake.  In  the  event  any 
circuit  judge,  or  district  judge,  having  so  held  a  commission  or 
commissions  at  least  ten  years  continuously,  and  having  attained 
the  age  of  seventy  years  as  aforesaid,  shall  nevertheless  remain 
in  office,  and  not  resign  or  retire  as  aforesaid,  the  President,  if 
he  finds  that  any  such  judge  is  unable  to  discharge  efficiently  all 
the  duties  of  his  office  by  reason  of  mental  or  physical  disability  of 
permanent  character,  may,  when  necessary  for  the  efficient  dis- 
patch of  business,  appoint,  by  and  with  the  advice  and  consent 
of  the  Senate,  an  additional  circuit  judge  of  the  circuit  or  dis- 
trict judge  of  the  district  to  which  such  disabled  judge  belongs. 
And  the  judge  so  retiring  voluntarilj^  or  w^hose  mental  or  physical 
condition  caused  the  President  to  appoint  an  additional  judge, 
siiall  be  held  and  treated  as  if  junior  in  commission  to  the  remain- 
ing judges  of  said  court,  who  shall,  in  the  order  of  the  seniority 
of  their  respective  commissions,  exercise  such  powers  and  perform 
such  duties  as  by  law  may  be  incident  to  seniority.  In  districts 
where  there  may  be  more  than  one  district  judge,  if  the  judges 
or  a  majoiity  of  them  can  not  agree  upon  the  appointment  of  offi- 
cials of  the  court,  to  be  appointed  by  such  judges,  then  the  senior 
judge  shall  have  the  power  to  make  siicli  appointments. 

Upon  the  death,  resignation,  or  retirement  of  any  circuit  or 
district  judge,  so  entith'd  to  resijrn,  following  the  appointment  of 
any    addilioiud    judge   as    pi-ovided    in    this    section,    the   vacancy 


The  Judicial  Code  573 

caused  by  such  death,  resignation  or  retirement  of  the  said  judge 
so  entitled  to  I'csign  shall  not  be  filled. 
Amended  by  the  Act  of  Feb.  25,  1919,  c.  29  (40  Stat.  L.  1157-1158). 

§  261.  Writs  of  ne  exeat  may  be  granted  by  any  justice  of  the 
supreme  court,  in  cases  where  they  might  be  granted  by  the 
supreme  court ;  and  by  any  district  judge,  in  cases  where  they 
might  be  granted  by  the  district  court  of  which  he  is  a  judge. 
But  no  writ  of  ne  exeat  shall  be  granted  unless  a  suit  in  equity 
is  commenced,  and  satisfactory  proof  is  made  to  the  court  or 
judge  granting  the  same  that  the  defendant  designs  quickly  to 
depart  from  the  United  States. 

§262.  The  supreme  court  and  the  district  courts  shall  have 
power  to  issue  writs  of  scire  facias.  The  supreme  court,  the  circuit 
courts  of  appeals,  and  the  district  courts  shall  have  power  to 
issue  all  writs  not  specifically  provided  for  by  statute,  which  may 
be  necessary  for  the  exercise  of  their  respective  jurisdictions,  and 
agreeable  to  the  usages  and  principles  of  law. 

§  263.  Whenever  notice  is  given  of  a  motion  for  an  injunction 
out  of  a  district  court,  the  court  or  judge  thereof  may,  if  there 
appears  to  be  danger  of  irreparable  injury  from  delay,  grant  an 
order  restraining  the  act  sought  to  be  enjoined  until  the  decision 
upon  the  motion ;  and  such  order  may  be  granted  -with  or  without 
security,  in  the  discretion  of  the  court  or  judge. 

Repealed  hj  the  Act  of  October  15,  1914,  c.  323  (38  Stat.  L.  737). 

§  264.  Writs  of  injunction  may  be  granted  by  any  justice  of  the 
supreme  court  in  cases  where  they  might  be  granted  by  the 
supreme  court ;  and  by  any  judge  of  a  district  court  in  cases 
where  they  might  be  granted  by  such  court.  But  no  justice  of  the 
supreme  court  shall  hear  or  allow  any  application  for  an  injunc- 
tion or  restraining  order  in  any  cause  pending  in  the  circuit  to 
which  he  is  allotted,  elsewhere  than  within  such  circuit,  or  at 
such  place  outside  of  the  same  as  the  parties  may  stipulate  in 
writing,  except  when  it  can  not  be  heard  by  the  district  judge  of 
the  district.  In  case  of  the  absence  from  the  district  of  the  dis- 
trict judge,  or  of  his' disability,  any  circuit  judge  of  the  circuit 
in  which  the  district  is  situated  may  grant  an  injunction  or  re- 
straining order  in  any  case  pending  in  the  district  court,  where 
the  same  might  be  granted  by  the  district  judge. 


57-1  Appendix 

§  265.  The  writ  of  injunction  shall  not  be  granted  by  any  court 
of  the  United  States  to  stay  proceedings  in  any  court  of  a  state, 
except  in  cases  where  such  injunction  may  be  authorized  by  any 
law  relating  to  proceedings  in  bankruptcy. 

§  266.  No  interlocutor}^  injunction  suspending  or  restraining 
the  enforcement,  operation,  or  execution  of  any  statute  of  a  state 
by  restraining  the  action  of  anj^  officer  of  such  state  in  the  enforce- 
ment or  execution  of  such  statute,  or  in  the  enforcement  or  ex- 
ecution of  an  order  made  by  an  administrative  board  or  com- 
mission acting  under  and  pursuant  to  the  statutes  of  such  state, 
shall  be  issued  or  granted  by  any  justice  of  the  supreme  court, 
or  by  any  district  court  of  the  United  States,  or  by  any  judge 
thereof,  or  by  any  circuit  judge  acting  as  district  judge,  upon 
the  ground  of  the  unconstitutionality  of  such  statute,  unless  the 
application  for  the  same  shall  be  presented  to  a  justice  of  the 
Supreme  Court  of  the  United  States,  or  to  a  circuit  or  district 
judge,  and  shall  be  heard  and  determined  by  three  judges,  of 
whom  at  least  one  shall  be  a  justice  of  the  supreme  court,  or  a 
circuit  judge,  and  the  other  two  may  be  either  circuit  or  district 
judges,  and  unless  a  majority  of  said  three  judges  shall  concur 
in  granting  such  application.  "Whenever  such  application  as 
aforesaid  is  presented  to  a  justice  of  the  supreme  court,  or  to  a 
judge,  he  shall  immediately  call  to  his  assistance  to  hear  and  deter- 
mine the  application  two  other  judges:  Provided,  however,  That 
one  of  such  three  judges  shall  be  a  justice  of  the  supreme  court, 
or  a  circuit  judge.  Said  application  shall  not  be  heard  or  deter- 
mined before  at  least  five  days'  notice  'of  the  hearing  has  been 
given  to  the  governor  and  to  the  attorney  general  of  the  state, 
and  to  such  other  persons  as  may  be  defendants  in  the  suit : 
Provided,  That  if  of  opinion  that  irreparable  loss  or  damage  would 
result  to  the  complainant  unless  a  temporary  restraining  order  is 
gi-anted,  any  justice  of  the  supreme  court,  or  any  circuit  or  dis- 
trict judge,  may  grant  such  temporary  restraining  order  at  any 
time  before  such  hearing  and  determination  of  the  application 
for  an  interlocutory  injunction,  but  such  temporary  restraining 
order  shall  remain  in  force  only  until  the  hearing  and  determina- 
lif)n  of  llie  application  for  an  interlocutory  injunction  upon  notice 
as  aforesaid.  The  hearing  upon  such  application  for  an  interlocu- 
tory injunction  shall  be  given  precedence  and  shall  be  in  every 
way  expedited  and  be  assigned  for  a  licjiring  at  the  earliest  practi- 
(■:>)>]('  il;i\-  ;ir(cr  llu-  cv pii-;i1  ion  ttf  tlie  notice  liei-einl)efore  provided 


The  Judicial  Code  575 

for.  An  appeal  may  be  taken  direct  to  the  Supreme  Court  of  the 
United  States  from  the  order  granting  or  denying,  after  notice 
and  hearing,  an  interlocutory  injunction  in  such  case.  It  is  fur- 
ther provided  that  if  before  the  final  hearing  of  such  application 
a  suit  shall  have  been  brought  in  a  court  of  the  state  having  juris- 
diction thereof  under  the  laws  of  such  state,  to  enforce  such 
statute  or  order,  accompanied  by  a  stay  in  such  state  court  of 
proceedings  under  such  statute  or  order  pending  the  determination 
of  such  suit  by  such  state  court,  all  proceedings  in  any  court  of 
the  United  States  to  restrain  the  execution  of  such  statute  or  order 
shall  be  stayed  pending  the  final  determination  of  such  suit  in  the 
courts  of  the  state.  Such  stay  may  be  vacated  upon  proof  made 
after  hearing,  and  notice  of  ten  days  served  upon  the  attorney 
general  of  the  state,  that  the  suit  in  the  state  court  is  not  being 
prosecuted  with  diligence  and  good  faith. 
Amended  by  the  Act  of  March  4,  1913,  e.  150   (37  Stat.  L.  1013). 

§  267.  Suits  in  equity  shall  not  be  sustained  in  any  court  of  the 
United  States  in  any  case  where  a  plain,  adequate,  and  complete 
remedy  may  be  had  at  law. 

§  268.  The  said  court  shall  have  power  to  impose  and  administer 
all  necessary  oaths,  and  to  punish,  by  fine  or  imprisonment,  at  the 
discretion  of  the  court,  contempts  of  their  authority:  Provided, 
That  such  power  to  punish  contempts  shall  not  be  construed  to 
extend  to  any  cases  except  the  misbehavior  of  any  person  in  their 
presence,  or  so  near  thereto  as  to  obstruct  the  administration  of 
justice,  the  misbehavior  of  any  of  the  officers  of  said  courts  in 
their  official  transactions,  and  the  disobedience  or  resistance  by 
any  such  officer,  or  by  any  party,  juror,  witness,  or  other  person 
to  any  lawful  writ,  process,  order,  rule,  decree,  or  command  of  the 
said  courts. 

§  269.  All  of  the  said  courts  shall  have  powder  to  grant  new 
trials,  in  cases  where  there  has  been  a  trial  by  jury,  for  reasons 
for  which  new  trials  have  usually  been  granted  in  the  courts  of 
law. 

§  270.  The  judges  of  the  supreme  court  and  of  the  circuit  courts 
of  appeals  and  district  courts,  United  States  commissioners,  and 
the  judges  and  other  magistrates  of  the  several  states,  who  are 
or  may  be  authorized  by  law  to  make  arrests  for  oflfenses  against 


576  Appendix 

the  United  States,  shall  have  the  like  authority  to  hold  to  security 
of  the  peace  and  for  good  behavior,  in  eases  arising  under  the 
Constitution  and  laws  of  the  United  States,  as  may  be  lawfully 
exercised  by  any  judge  or  justice  of  the  peace  of  the  respective 
states,  in  cases  cognizable  before  them. 

§  271.  The  district  courts  and  the  United  States  commissioners 
shall  have  power  to  carry  into  effect,  according  to  the  true  intent 
and  meaning  thereof,  the  award  or  arbitration  or  decree  of  any 
consul,  vice  consul,  or  commercial  agent  of  any  foreign  nation, 
made  or  rendered  by  virtue  of  authority  conferred  on  him  as  such 
consul,  vice  consul,  or  commercial  agent,  to  sit  as  judge  or  arbi- 
trator in  such  differences  as  may  arise  between  the  captains  and 
crews  of  the  vessels  belonging  to  the  nation  whose  interests  are 
committed  to  his  charge,  application  for  the  exercise  of  such  power 
being  first  made  to  such  court  or  commissioner,  by  petition  of 
such  consul,  vice  consul,  or  commercial  agent.  And  said  courts 
and  commissioners  may  issue  all  proper  remedial  process,  mesne 
and  final,  to  carry  into  full  effect  such  award,  arbitration,  or 
decree,  and  to  enforce  obedience  thereto  by  imprisonment  in  the 
jail  or  other  place  of  confinement  in  the  district  in  which  the 
United  States  may  lawfully  imprison  any  person  arrested  under 
the  authority  of  the  United  States,  until  such  award,  arbitration, 
or  decree  is  complied  with,  or  the  parties  are  otherwise  discharged 
therefrom,  bj'  the  consent  in  writing  of  such  consul,  vice  consul, 
or  commercial  agent,  or  his  successor  in  office,  or  by  the  authority 
of  the  foreign  government  appointing  such  consul,  vice  consul, 
or  commercial  agent:  Provided,  hoivever,  That  the  expenses  of 
the  said  imprisonment  and  maintenance  of  the  prisoners,  and  the 
cost  of  the  proceedings,  shall  be  borne  by  such  foreign  govern- 
ment, or  by  its  consul,  vice  consul,  or  commercial  agent  requiring 
such  imprisonment.  The  marshals  of  the  United  States  shall  serve 
all  such  process,  and  do  all  other  acts  necessary  and  proper  to 
carry  into  effect  the  premises,  under  the  authority  of  the  said 
courts  and  commissioners. 

§272.  Ill  all  the  courts  of  the  United  States  the  parties  may 
plf-ad  and  iiiaiiajrc  tlicir  own  causes  pei'sonally,  or  by  the  assist- 
ance of  sudi  coiiiiscl  or  iiltonicys  at  law  as,  by  tlic  nilcs  of  the 
said  courts,  respectively,  are  permitted  to  manage  and  conduct 
causes  therein. 


The  Judicial  Code  577 

§273.  No  clerk,  or  assistant  or  deputy  clerk,  of  any  territorial, 
district,  or  circuit  court  of  appeals,  or  of  the  court  of  claims, 
or  of  the  Supreme  Court  of  the  United  States,  or  marshal  or  deputy 
marshal  of  the  United  States  within  the  district  for  which  he  is 
appointed,  shall  act  as  a  solicitor,  proctor,  attorney,  or  counsel 
in  any  cause  depending  in  any  of  said  courts,  or  in  any  district 
for  which  he  is  acting  as  such  officer, 

§  274.  Whoever  shall  violate  the  provisions  of  the  preceding  sec- 
tion shall  be  stricken  from  the  roll  of  attorneys  by  the  court  upon 
complaint,  upon  which  the  respondent  shall  have  due  notice  and 
be  heard  in  his  defense;  and  in  the  case  of  a  marshal  or  deputy 
marshal  so  acting,  he  shall  be  recommended  by  the  court  for  dis- 
missal from  office. 

§  274a.  That  in  case  any  of  said  courts  shall  find  that  a  suit  at 
law  should  have  been  brought  in  equity  or  a  suit  in  equity  should 
have  been  brought  at  law,  the  court  shall  order  anj^  amendments 
to  the  pleadings  which  may  be  necessary  to  conform  them  to  the 
proper  practice.  Any  party  to  the  suit  shall  have  the  right,  at 
any  stage  of  the  cause,  to  amend  his  pleadings  so  as  to  obviate  the 
objection  that  his  suit  was  not  brought  on  the  right  side  of  the 
court.  The  cause  shall  proceed  and  be  determined  upon  such 
amended  pleadings.  All  testimony  taken  before  such  amendment, 
if  preserved,  shall  stand  as  testimony  in  the  cause  wnth  like  effect 
as  if  the  pleadings  had  been  originally  in  the  amended  form. 

§  274b.  That  in  actions  at  law  equitable  defenses  may  be  inter- 
posed by  answer,  plea,  or  replication  without  the  necessity  of  filing 
a  bill  on  the  equity  side  of  the  court.  The  defendant  shall  have 
the  same  rights  in  such  cases  as  if  he  had  filed  a  bill  embodying 
the  defense  of  [or?]  seeking  the  relief  prayed  for  in  such  answer 
or  plea.  Equitable  relief  respecting  the  subject  matter  of  the 
.suit  may  thus  be  obtained  by  answer  or  plea.  In  case  affirmative 
relief  is  prayed  in  such  answer  or  plea,  the  plaintiff  shall  file  a 
replication.  Review  of  the  judgment  or  decree  entered  in  such 
case  shall  be  regulated  by  rule  of  court.  Whether  such  review 
be  sought  by  writ  of  error  or  by  appeal  the  appellate  court  shall 
have  full  power  to  render  such  judgment  upon  the  records  as  law 
and  justice  shall  require. 

§  274c.  That  where,  in  any  suit  brought  in  or  removed  from  any 
state  court  to  any  district  [court?]  of  the  United  States,  the  juris- 
Wheaton  C.  F.  P.— 37 


578  Appendix 

diction  of  the  district  court  is  based  upon  the  diverse  citizenship 
of  the  parties,  and  such  diverse  citizenship  in  fact  existed  at  the 
time  the  suit  was  brought  or  removed,  though  defectively  alleged, 
either  party  may  amend  at  any  stage  of  the  proceedings  and  in 
the  appellate  court  upon  such  terms  as  the  court  may  impose,  so 
as  to  show  on  the  record  such  diverse  citizenship  and  jurisdiction, 
and  thereupon  such  suit  shall  be  proceeded  with  the  same  as  though 
the  diverse  citizenship  had  been  fully  and  correctly  pleaded  at  the 
inception  of  the  suit,  or,  if  it  be  a  removal  case,  in  the  petition  for 
removal. 


CHAPTER  XTI 

JURIES 

§  275.  Qualification  and  exemptions  of  jurors. 
§  276.  Jurors,  how  drawn. 

§  277.  Jurors,  how  to  be  apportioned  in  the  district. 
§  278.  Race  or  color  not  to  exclude. 
§  279.  Venire,  how  issued  and  served. 
§  280.  Talesmen  for  petit  juries. 
§  281.  Special  juries. 
§  282.  Number  of  grand  jurors. 
§  283.  Foreman  of  grand  jury. 
§  284.  Grand  juries,  when  summoned. 
§  285.  Discharge  of  grand  juries. 
§  286.  Jurors  not  to  serve  more  than  once  a  year. 
§287.  Challenges. 

§  288.  Persons  disqualified  for  service  on   jury   in  prosecutions  for  polygamy, 
etc. 

§  275.  Jurors  to  serve  in  the  courts  of  the  United  States,  in  each 
state  respectively,  shall  have  the  same  qualifications,  subject  to  the 
provisions  hereinafter  contained,  and  be  entitled  to  the  same 
exemptions,  as  jurors  of  the  highest  court  of  law  in  such  state 
may  have  and  be  entitled  to  at  the  time  when  such  jurors  for 
service  in  the  courts  of  the  United  States  are  summoned. 

§276.  All  such  jurors,  grand  and  petit,  including  those  sura- 
moiu'd  during  the  session  of  the  court,  shall  be  publicly  drawn 
from  a  box  containing,  at  the  time  of  each  drawing,  the  names 
of  not  less  than  tliree  hundred  persons,  possessing  the  qualifica- 
tions prescribed  in  the  .section  last  preceding,  which  names  shall 
have  been  phiced  therein  by  the  clerk  of  such  court,  or  a  duly 


The  Judicial  Code  579 

qualified  deputy  clerk,  and  a  commissioner,  to  be  appointed  by 
the  judge  thereof,  or  by  the  judge  senior  in  commission  in  dis- 
tricts having  more  than  one  judge,  which  commissioner  shall  be 
a  citizen  of  good  standing,  residing  in  the  district  in  which  such 
court  is  held,  and  a  well-known  member  of  the  principal  political 
party  in  the  district  in  which  the  court  is  held  opposing  that 
to  which  the  clerk  or  a  duly  qualified  deputy  clerk  then  acting; 
may  belong,  the  clerk  or  a  duly  qualified  deputy  clerk,  and  said 
commissioner  each  to  place  one  name  in  said  box  alternately,  with- 
out reference  to  party  afiiliations  until  the  whole  number  required 
shall  be  placed  therein. 
Amended  by  the  Act  of  Feb.  3,  1917,  c.  27  (39  Stat.  L.  873). 

§  277.  Jurors  shall  be  returned  from  such  parts  of  the  district, 
from  time  to  time,  as  the  court  shall  direct,  so  as  to  be  most  favor- 
able to  an  impartial  trial,  and  so  as  not  to  incur  an  unnecessary 
expense,  or  unduly  burden  the  citizens  of  any  part  of  the  district 
with  such  service. 

§  278.  No  citizen  possessing  all  other  qualifications  which  are 
or  ma}^  be  prescribed  by  law  shall  be  disqualified  for  service  as 
grand  or  petit  juror  in  any  court  of  the  United  States  on  account 
of  race,  color,  or  previous  condition  of  servitude. 

§  279.  Writs  of  venire  facias,  when  directed  by  the  court,  shall 
issue  from  the  clerk's  office,  and  shall  be  served  and  returned 
by  the  marshal  in  person,  or  by  his  deputy ;  or,  in  case  the  marshal 
or  his  deputy  is  not  an  indifferent  person,  or  is  interested  in  the 
event  of  the  cause,  by  such  fit  person  as  may  be  specially  appointed 
for  that  purpose  by  the  court,  who  shall  administer  to  him  an 
oath  that  he  will  truly  and  impartially  serve  and  return  the  writ. 
Any  person  named  in  such  writ  who  resides  elsewhere  than  at  the 
place  at  which  the  court  is  held,  shall  be  served  by  the  marshal 
mailing  a  copy  thereof  to  such  person  commanding  him  to  attend 
as  a  juror  at  a  time  and  place  designated  therein,  which  copy 
shall  be  registered  and  deposited  in  the  postoffice  addressed  tq 
such  person  at  his  usual  postoffice  address.  And  the  receipt  of 
the  person  so  addressed  for  such  registered  copy  shall  be  regarded 
as  personal  service  of  such  writ  upon  such  person,  and  no  mileage 
shall  be  allowed  for  the  service  of  such  person.  The  postage  and 
registry'-  fee  shall  be  paid  by  the  marshal  and  allowed  him  in  tho 
settlement  of  his  accounts. 


580  Appendix 

§  280.  When,  from  challenges  or  otherwise,  there  is  not  a  petit 
jury  to  determine  any  civil  or  criminal  cause,  thp  marshal  or  his 
deputy  shall,  by  order  of  the  court  in  which  such  defect  of  jurors 
happens,  return  jurymen  from  the  by-standers  sufficient  to  com- 
plete the  panel;  and  when  the  marshal  or  his  deputy  is  disqualified 
as  aforesaid,  jurcrs  may  be  so  returned  by  such  disinterested  per- 
son as  the  court  may  appoint,  and  such  person  shall  be  sworn,  as 
provided  in  the  preceding  section. 

§  281.  "When  special  juries  are  ordered  in  any  district  court, 
they  shall  be  returned  by  the  marshal  in  the  same  manner  and 
foi-m  as  is  required  in  such  cases  by  the  laws  of  the  several  states. 

§282.  Every  grand  jury  impaneled  before  any  district  court 
shall  consist  of  not  less  than  sixteen  nor  more  than  twenty-three 
persons.  If  of  the  persons  summoned  less  than  sixteen  attend, 
they  shall  be  placed  on  the  grand  jury,  and  the  court  shall  order 
the  marshal  to  summon,  either  immediately  or  for  a  day  fixed, 
from  the  body  of  the  district,  and  not  from  the  by-standers,  a 
sufficient  number  of  persons  to  complete  the  grand  jury.  And 
whenever  a  challenge  to  a  grand  juror  is  allowed,  and  there  are 
not  in  attendance  other  jurors  sufficient  to  complete  the  grand 
jury,  the  court  shall  make  a  like  order  to  the  marshal  to  summon 
a  sufficient  number  of  persons  for  that  purpose. 

§  283.  From  the  persons  summoned  and  accepted  as  grand 
jurors,  the  court  shall  appoint  tlie  foremna,  w'ho  shall  have  power 
to  administer  oaths  and  affirmations  to  witnesses  appearing  before 
the  grand  jury. 

§  284.  No  grand  jury  shall  be  summoned  to  attend  any  district 
court  unless  the  judge  thereof,  in  his  own  discretion  or  upon  a 
notification  by  the  district  attorney  that  such  jury  will  be  needed, 
orders  a  venire  to  issue  therefor.  If  the  United  States  attorney 
for  any  district  which  has  a  city  or  borough  containing  at  least 
tliree  hundred  thousand  inhabitants  shall  certify  in  writing  to  the 
district  judge,  or  the  senior  district  judge  of  the  district,  that  the 
exigencies  of  the  public  service  require  it,  the  judge  may,  in  his 
discretion,  also  oi-der  a  vnire  1o  issue  for  a  secoiul  grand  jury. 
And  said  court  may  in  jcriii  ordci-  a  grand  juiy  to  be  summoned 
at  such  time,  and  to  serve  such  time  as  it  may  direct,  wliencver. 
In   lis  jnd;.'iii<'i)1.  i1   trniy  be  projier  In  do  so.     But  nothing  herein 


The  Judicial  Code  581 

shall  operate  to  extend  beyond  the  time  permitted  by  law  the 
imprisonment  before  indictment  found  of  a  person  accused  of  a 
crime  or  offense,  or  the  time  during  which  a  pei-son  so  accused 
may  be  held  under  recognizance  before  indictment  found. 

§285.  The  district  courts,  the  district  courts  of  the  territories, 
and  the  Supreme  Court  of  the  District  of  Columbia  may  discharge 
their  grand  juries  whenever  they  deem  a  continuance  of  the  ses- 
sions of  such  juries  unnecessary. 

§  286.  No  person  shall  serve  as  a  petit  juror  in  any  district  court 
more  than  one  term  in  a  year;  and  it  shall  be  suflficient  cause  of 
challenge  to  any  juror  called  to  be  sworn  in  any  cause  that  he 
has  been  summoned  and  attended  said  court  as  a  juror  at  any 
term  of  said  court  held  within  one  year  prior  to  the  time  of  such 
challenge. 

§  287.  When  the  offense  charged  is  treason  or  a  capital  offense, 
the  defendant  shall  be  entitled  to  twenty  and  the  United  States 
to  six  peremptory  challenges.  On  the  trial  of  any  other  felony, 
the  defendant  shall  be  entitled  to  ten  and  the  United  States  to 
six  peremptory  challenges ;  and  in  all  other  cases,  civil  and  crimi- 
nal, each  party  shall  be  entitled  to  three  peremptorj'^  challenges, 
and  in  all  cases  where  there  are  several  defendants  or  several 
plaintiffs,  the  parties  on  each  side  shall  be  deemed  a  single  party 
for  the  purposes  of  all  challenges  under  this  section.  All  chal- 
lenges, whether  to  the  array  or  panel,  or  to  individual  jurors  for 
cause  or  favor,  shall  be  tried  by  the  court  without  the  aid  of 
triers. 

§288.  In  any  prosecution  for  bigamy,  polygamy,  or  unlawful 
cohabitation,  under  any  statute  of  the  United  States,  it  shall  be 
sufficient  cause  of  challenge  to  any  person  drawn  or  summoned  as 
a  juryman  or  talesman — 

First,  that  he  is  or  has  been  living  in  the  practice  of  bigamy, 
polygamy,  or  unlawful  cohabitation  with  more  than  one  woman, 
or  that  he  is  or  has  been  guilty  of  an  offense  punishable  either 
by  sections  one  or  three  of  an  Act  entitled  "An  Act  to  amend 
section  fifty-three  hundred  and  fifty-two  of  the  Revised  Statutes 
of  the  United  States,  in  reference  to  bigamy  and  for  other  pur- 
poses," approved  March  tAventy-second,  eighteen  hundred  and 
eighty-two,  or  by  section  fifty-three  hundred  and  fifty-two  of  the 


582  Appendix 

Revised  Statutes  of  the  United  States,  or  the  Act  of  July  first, 
eighteen  hundred  and  sixty-two  entitled,  "An  Act  to  punish  and 
prevent  the  practice  of  polygamy  in  the  territories  of  the  United 
States  and  other  places,  and  disapproving  and  annulling  certain 
acts  of  the  legislative  assembly  of  the  territory  of  Utah;"  or 

Second,  that  he  believes  it  right  for  a  man  to  have  more  than 
one  living  and  undivorced  wife  at  the  same  time,  or  to  live  in 
the  practice  of  cohabitating  with  more  than  one  woman. 

Any  person  appearing  or  offered  as  a  juror  or  talesman,  and 
challenged  on  either  of  the  foregoing  grounds,  maj  be  questioned 
on  his  oath  as  to  the  existence  of  any  such  cause  of  challenge ;  and 
other  evidence  may  be  introduced  bearing  upon  the  question  raised 
by  such  challenge ;  and  this  question  shall  be  tried  by  the  court. 

But  as  to  the  first  ground  of  challenge  before  mentioned,  the 
person  challenged  shall  not  be  bound  to  answer  if  he  shall  say 
upon  his  oath  that  he  declines  on  the  ground  that  his  answer 
may  tend  to  criminate  himself;  and  if  he  shall  answer  as  to  said 
first  ground,  his  answer  shall  not  be  given  in  evidence  in  any  crimi- 
nal prosecution  against  him  for  any  offense  above  named;  but  if 
he  declines  to  answer  on  any  ground,  he  shall  be  rejected  as  in- 
competent. 


CHAPTER  XIII 

GENERAL  PROVISIONS 

§  289.  Circuit  courts  abolished — Records  of  to  be  transferred  to  district  courts. 
§  290.  Suits  pending  in  circuit  courts  to  be  disposed  of  in  district  courts. 
§  291.  Powers  and  duties  of  circuit  courts  imposed  upon  district  courts. 
§  292.  References  to  laws  revised  in  this  act  deemed  to  refer  to  sections  of 

act. 
§  293.  Sections  1  to  5,  Revised  Statutes,  to  govern  construction  of  this  act. 
§  294.  Laws  revised  in  this  act  to  be  construed  as  continuations  of  existing 

laws. 
§  29.5.  Inference    of    legislative    construction    not    to    be    drawn    by   reason    of 

arrangement  of  sections. 
§296.  Act  may  be  designated  as  "The  Judicial  Code." 

§289.  The  circuit  courts  of  the  United  States,  upon  the  taking 
cffff't  of  this  Act,  .shall  bo,  and  lieroby  are,  abolisliod;  and  there- 
ufxtn,  on  .said  date,  the  clerks  of  said  courts  shall  deliver  to  the 
dorks  of  the  district  courts  of  tlio  United  States  for  their  respec- 
tive districts  all  the  journals,  dookots,  books,  files,  records,  and 


The  Judicial  Code  583 

other  books  and  papers  of  or  belonging  to  or  in  anj^  manner  con- 
nected with  said  circuit  courts ;  and  shall  also  on  said  date  deliver 
to  the  clerks  of  said  district  courts  all  moneys,  from  whatever 
source  received,  then  remaining  in  their  hands  or  under  their 
control  as  clerks  of  said  circuit  courts,  or  received  by  them  by 
virtue  of  their  said  offices.  The  journals,  dockets,  books,  files, 
records,  and  other  books  and  papers  so  delivered  to  the  clerks  of 
the  several  district  courts  shall  be  and  remain  a  part  of  the  official 
records  of  said  district  courts,  and  copies  thereof,  when  certified 
under  the  hand  and  seal  of  the  clerk  of  the  district  court,  shall 
be  received  as  evidence  equally  with  the  originals  thereof;  and 
the  clerks  of  the  several  district  courts  shall  have  the  same  author- 
ity to  exercise  all  the  powers  and  to  perform  all  the  duties  with 
respect  thereto  as  the  clerks  of  the  several  circuit  courts  had  prior 
to  the  taking  effect  of  this  Act. 

§  290.  All  suits  and  proceedings  pending  in  said  circuit  courts 
on  the  date  of  the  taking  effect  of  this  Act,  whether  originally 
brought  therein  or  certified  thereto  from  the  district  courts,  shall 
thereupon  and  thereafter  be  proceeded  with  and  disposed  of  in 
the  district  courts  in  the  same  manner  and  with  the  same  effect 
as  if  originally  begun  therein,  the  record  thereof  being  entered 
in  the  records  of  the  circuit  courts  so  transferred  as  above  pro- 
vided. 

§  291.  Wherever,  in  any  law  not  embraced  within  this  Act,  any 
reference  is  made  to,  or  any  power  or  duty  is  conferred  or  imposed 
upon,  the  circuit  courts,  such  reference  shall,  upon  the  taking 
effect  of  this  Act,  be  deemed  and  held  to  refer  to,  and  to  confer 
such  power  and  impose  such  duty  upon,  the  district  courts. 

§  292.  Wherever,  in  any  law  not  contained  within  this  Act,  a 
reference  is  made  to  any  law  revised  or  embraced  herein,  such 
reference,  upon  the  taking  effect  hereof,  shall  be  construed  to 
refer  to  the  section  of  this  Act  into  which  has  been  carried  or 
revised  the  provision  of  law  to  which  reference  is  so  made. 

§  293.  The  provisions  of  sections  one  to  five,  both  inclusive,  of 
the  Revised  Statutes,  shall  apply  to  and  govern  the  construction 
of  the  provisions  of  this  Act.  The  words  ''this  title,"  wherever 
they  occur  herein,  shall  be  construed  to  mean  this  Act. 


58-1  Appendix 

§  294.  The  provisions  of  this  Act,  so  far  as  they  are  substan- 
tially the  same  as  existing  statutes,  shall  be  construed  as  continua- 
tions thereof,  and  not  as  new  enactments,  and  there  shall  be  no 
implication  of  a  change  of  intent  by  reason  of  a  change  of  Avords 
in  such  statute,  unless  such  change  of  intent  shall  be  clearly 
manifest. 

§  295.  The  arrangement  and  classification  of  the  several  sections 
of  this  Act  have  been  made  for  the  purpose  of  a  more  convenient 
and  orderlj'  arrangement  of  the  same,  and  therefore  no  inference 
or  presumption  of  a  legislative  construction  is  to  be  drawn  by 
reason  of  the  chapter  under  which  any  particular  section  is  placed. 

§296.  This  Act  may  be  designated  and  cited  as  "The  Judicial 
Code." 


CHAPTER  XIV 

REPEALING  PROVISIONS 

§  297.  Sections,  acts,  and  parts  of  acts  repealed. 

§  298.  Repeal   not   to   affoct    tenure    of   office,   or   salary,   or   compensation   of 

incumbents,  etc. 
§  299.  Accrued  rights,  etc.,  not  affected. 
§  300.  Offenses  committed,  and  penalties,   forfeitures,  and  liabilities  incurred, 

how  to  be  prosecuted  and  enforced. 
§  301.  Date  this  act  shall  be  effective. 

§  297.  The  following  sections  of  the  Revised  Statutes  and  Acts 
and  parts  of  Acts  are  hereby  repealed  : 

Sections  five  hundred  and  thirty  to  five  hundred  and  sixty,  both 
inclusive ;  section  five  hundred  and  sixty-two  to  five  hundred  and 
sixty-foui',  botli  inclusive;  sections  five  hundred  and  sixty-seven 
to  six  hundred  and  twenty-seven,  both  inclusive;  sections  six  hun- 
dred and  twenty-nine  to  six  lumdied  and  forty-seven,  both  inclu- 
sive; sections  six  hundred  and  fifty  to  six  hundred  and  ninety- 
seven,  both  inclusive;  section  six  hundred  and  ninety-nine;  sec- 
tions seven  liundicd  and  two  to  seven  hundred  and  fourteen,  both 
inclusive;  sections  seven  hundred  and  sixteen  to  seven  hundred 
and  twenty,  both  inclusive;  section  seven  hundred  and  twenty- 
three;  sections  seven  hundred  and  twenty-five  to  seven  hundred 
and    forty-nine,    both    inclusive;   sections   ei^hl    hniulred    to   eight 


The  Judicial  Code  585 

hundred  and  twenty-two,  both  inclusive;  sections  ten  hundred 
and  forty-nine  to  ten  hundred  and  eighty-eight,  both  inclusive; 
sections  ten  hundred  and  ninety-one  to  ten  hundred  and  ninety- 
three,  both  inclusive,  of  the  Revised  Statutes. 

"An  Act  to  determine  the  jurisdiction  of  circuit  courts  of  the 
United  States  and  to  regulate  the  removal  of  causes  fi-om  state 
courts,  and  for  other  purposes,"  approved  March  third,  eighteen 
hundred  and  seventy-five. 

Section  five  of  an  Act  entitled  "An  Act  to  amend  section  fifty- 
tliree  hundred  and  fifty-two  of  the  Revised  Statutes  of  the  United 
States,  in  reference  to  bigamy,  and  for  other  purposes,"  approved 
March  twenty-second,  eighteen  hundred  and  eighty-two ;  but  sec- 
tions six,  seven  and  eight  of  said  Act,  and  sections  one,  two  and 
twenty-six  of  an  Act  entitled  "An  Act  to  amend  an  Act  entitled 
'An  Act  to  amend  section  fifty-three  hundred  and  fifty-two  of  the 
Revised  Statutes  of  the  United  States,  in  reference  to  bigamy,  and 
for  other  purposes,'  approved  March  twenty-second,  eighteen  hun- 
dred and  eighty-two,"  approved  March  third,  eighteen  hundred 
and  eighty-seven,  and  hereby  continued  in  force. 

"An  Act  to  afford  assistance  and  relief  to  Congress  and  the 
executive  departments  in  the  investigation  of  claims  and  demands 
against  the  Government,"  approved  March  third,  eighteen  hun- 
dred and  eighty-three. 

"An  Act  regulating  appeals  from  the  Supreme  Court  of  the 
District  of  Columbia  and  the  supreme  courts  of  the  several  terri- 
tories," approved  March  third,  eighteen  hundred  and  eighty-five. 

"An  Act  to  provide  for  the  bringing  of  suits  against  the  Gov- 
ernment of  the  United  States,"  approved  March  third,  eighteen 
hundred  and  eighty-seven,  except  sections  four,  five,  six,  seven  and 
ten  thereof. 

Sections  one,  two,  three,  four,  six  and  seven  of  an  Act  entitled 
"An  Act  to  correct  the  enrollment  of  an  Act  approved  March 
thii"d,  eighteen  hundred  and  eighty-seven,  entitled  'An  Act  to 
amend  sections  one,  two,  three  and  ten  of  an  Act  to  determine  the 
jurisdiction  of  the  circuit  courts  of  the  United  States,  and  to 
regulate  the  removal  of  causes  from  state  courts,  and  for  other 
purposes,'  approved  ]\Iarch  third,  eighteen  hundred  and  seventy- 
five,"  approved  August  thirteenth,  eighteen  hundred  and  eighty- 
eight. 

"An  Act  to  withdraw  from  the  supreme  court  jurisdiction  of 
criminal   cases   not   capital   and   confer   the   same   on   the   circuit 


586  Appendix 

courts  of  appeals, ' '  approved  January  twentieth,  eighteen  hundred 
and  ninety-seven. 

"An  Act  to  amend  sections  one  and  two  of  the  Act  of  March 
third,  eighteen  hundred  and  eiglitj^-seven,  Twenty-fourth  Statutes 
at  Large,  Chapter  three  hundred  and  fifty-nine,"  approved  June 
twenty-seventh,  eighteen  hundred  and  ninety-eight. 

"An  Act  to  amend  the  seventh  section  of  the  Act  entitled  *An 
Act  to  establish  circuit  courts  of  appeals  and  to  define  and  regu- 
late in  certain  cases  the  jurisdiction  of  the  courts  of  the  United 
States,  and  for  other  purposes,'  approved  March  third,  eighteen 
hundred  and  ninety-one,  and  the  several  Acts  amendatory  thereto, ' ' 
approved  April  fourteenth,  nineteen  hundred  and  six. 

All  Acts  and  parts  of  Acts  authorizing  the  appointment  of 
United  States  circuit  or  district  judges,  or  creating  or  changing 
judicial  circuits,  or  judicial  districts  or  divisions  thereof,  or  fiixing 
or  changing  the  times  or  places  of  holding  court  therein,  enacted 
prior  to  February  first,  nineteen  hundred  and  eleven. 

Sections  one,  two,  three,  four,  five,  the  first  paragraph  of  section 
six,  and  section  seventeen  of  an  Act  entitled  "An  Act  to  create 
a  commerce  court,  and  to  amend  an  Act  entitled  'An  Act  to  regu- 
late commerce,'  approved  February  fourth,  eighteen  hundred  and 
eighty-seven,  as  heretofore  amended,  and  for  other  purposes," 
approved  June  eighteenth,  nineteen  hundred  and  ten. 

Also  all  other  Acts  and  parts  of  Acts,  in  so  far  as  they  are  em- 
braced within  and  superseded"  by  this  Act,  are  hereby  repealed ; 
the  remaining  portions  thereof  to  be  and  remain  in  force  with  the 
same  effect  and  to  the  same  extent  as  if  this  Act  had  not  been 
passed. 

§298.  The  repeal  of  existing  laws  providing  for  the  appoint- 
ment of  judges  and  other  officers  mentioned  in  this  Act,  or  affect- 
ing the  organization  of  the  courts,  shall  not  be  construed  to  affect 
the  tenure  of  office  of  the  incumbents  (except  the  office  be  abol- 
ished), but  they  shall  continue  to  hold  their  respective  offices  dur- 
ing the  terms  for  which  appointed,  unless  removed  as  provided  by 
law;  nor  (except  the  office  be  a])()]is]ied)  shall  such  repeal  affect 
the  salary  or  fees  or  compensation  of  any  officer  or  person  holding 
office  or  position  by  virtue  of  any  law. 

§299.  Tlio  rcfx'al  of  existing  laws,  or  llic  amcndnionts  tlicrcof, 
cnibraccfl  in  lliis  Ad,  shall  not  afToct  any  act  done,  or  any  right 
afcrniii^'  nr  .Hcrncd,   or  ;iny  siiil    or   piftcrfdinjr,    inclnding  those 


The  JrDiriAi.  ("odk  587 

pending  on  writ  of  error,  appeal,  certificate,  or  writ  of  certiorari, 
in  any  appellate  court  referred  to  or  included  Avithin,  the  pro- 
visions of  this  Act,  pending  at  the  time  of  the  taking  effect  of 
this  Act,  but  all  such  suits  and  proceedings,  and  suits  and  pro- 
ceedings for  causes  arising  or  acts  done  prior  to  such  date,  may 
be  commenced  and  prosecuted  within  the  same  time,  and  with 
the  same  effect,  as  if  said  repeal  or  amendments  had  not  been 
made. 

§300.  All  offenses  committed,  and  all  penalties,  forfeitures  or 
liabilities  incurred  prior  to  the  taking  effect  hereof,  under  any 
law  embraced  in,  amended,  or  repealed  by  this  Act,  may  be  prose- 
cuted and  punished,  or  sued  for  and  recovered,  in  the  district 
courts,  in  the  same  manner  and  with  the  same  effect  as  if  this 
Act  had  not  been  passed. 

§  301.  This  Act  shall  take  effect  and  be  in  force  on  and  after 
January  first,  nineteen  hundred  and  twelve. 
Approved  March  3,  1911. 


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EQUITY  RULES 

RULES  OF  PRACTICE  FOR  THE  COURTS  OF  EQUITY 
OF  THE  UNITED  STATES 

Promulgated  by  the 

Supreme  Court  of  the  United  States 

November  4,  1912 

Rule  1.  District  court  always  open  for  certain  purposes — 
Orders  at  chambers.  The  district  courts,  as  courts  of  ec^uity,  shall 
be  deemed  always  open  for  the  purpose  of  tiling  any  pleading,  of 
issuing  and  returning  mesne  and  final  process,  and  of  making 
and  directing  all  interlocutory  motions,  orders,  rules  and  other 
proceedings  preparatory  to  the  hearing,  upon  their  merits,  of  all 
causes  pending  therein. 

Any  district  judge  may,  upon  reasonable  notice  to  the  parties, 
make,  direct,  and  award,  at  chambers,  or  in  the  clerk's  office,  and  in 
vacation  as  well  as  in  term,  all  such  process,  commissions,  orders, 
rules  and  other  proceedings,  whenever  the  same  are  not  grantable 
of  course,  according  to  the  rules  and  practice  of  the  court. 

Rule  2.  Clerk's  office  always  open,  except,  etc.  The  clerk's 
office  shall  be  open  during  business  hours  on  all  days,  except  Sun- 
days and  legal  holidays,  and  the  clerk  shall  be  in  attendance  for 
the  purpose  of  receiving  and  disposing  of  all  motions,  rules,  orders 
and  other  proceedings  which  are  grantable  of  course. 

Rule  3.  Books  kept  by  clerk  and  entries  therein.  The  clerk 
shall  keep  a  book  known  as  the  "Equity  Docket,"  in  Avhich  he 
shall  enter  each  suit,  with  a  file  number  corresponding  to  the 
folio  in  the  book.  All  papers  and  orders  filed  with  the  clerk  in 
the  suit,  all  process  issued  and  returns  made  thereon,  and  all  ap- 
pearances shall  be  noted  briefly  and  chronologically  in  this  book 
on  the  folio  assigned  to  the  suit  and  shall  be  marked  with  its  file 
number. 

The  clerk  shall  also  keep  a  book  entitled  "Order  Book,"  in 
which  shall  be  entered  at  length,  in  the  order  of  their  making,  all 
orders  made  or  passed  by  him  as  of  course  and  also  all  orders  made 
or  passed  by  the  judge  in  chambers. 

601 


602  Appendix 

He  shall  also  keep  an  "Equity  Journal,"  in  which  shall  be  en- 
tered all  orders,  decrees  and  proceedings  of  the  court  in  equity 
causes  in  term  time. 

Separate  and  suitable  indices  of  the  Equity  Docket,  Order  Book 
and  Equity  Journal  shall  be  kept  by  the  clerk  under  the  direction 
of  the  court. 

Rule  4.  Notice  of  orders.  Neither  the  noting  of  an  order  in 
the  Equity  Docket  nor  its  entry  in  the  Order  Book  shall  of  itself 
be  deemed  notice  to  the  parties  or  their  solicitors;  and  when  an 
order  is  made  without  prior  notice  to,  and  in  the  absence  of,  a 
party,  the  clerk,  unless  otherwise  directed  by  the  court  or  judge, 
shall  forthwith  send  a  copy  thereof,  by  mail  to  such  party  or  his 
solicitor  and  a  note  of  such  mailing  shall  be  made  in  the  Equity 
Docket,  which  shall  be  taken  as  sufficient  proof  of  due  notice  of 
the  order. 

Rule  5.  Motions  grantable  of  course  by  clerk.  All  motions 
and  applications  in  the  clerk's  office  for  the  issuing  of  mesne 
process  or  final  process  to  enforce  and  execute  decrees;  for  taking 
bills  -pro  confesso;  and  for  other  proceedings  in  the  clerk's  office 
which  do  not  require  any  allowance  or  order  of  the  court  or  of  a 
judge,  shall  be  deemed  motions  and  applications  grantable  of 
course  by  the  clerk ;  but  the  same  may  be  suspended,  or  altered,  or 
rescinded  by  the  judge  upon  special  cause  shown. 

Rule  6.  Motion  day.  Each  district  court  shall  establish  regu- 
lar times  and  places,  not  less  than  once  each  month,  when  motions 
requiring  notice  and  hearing  may  be  made  and  disposed  of;  but 
the  judge  may  at  any  time  and  place,  and  on  such  notice,  if  any, 
as  he  may  consider  reasonable,  make  and  direct  all  interlocutory 
orders,  rulings  and  proceedings  for  the  advancement,  conduct  and 
hearing  of  causes.  If  the  public  interest  permits,  the  senior  cir- 
cuit judge  of  the  circuit  may  dispense  with  the  motion  day  during 
not  to  exceed  two  months  in  the  year  in  any  district. 

Rule  7.  Process,  mesne  and  final.  The  process  of  subpoena 
sliall  constitute  tiie  proper  mesne  process  in  all  suits  in  equity, 
in  the  first  instance,  to  require  the  defendant  to  appear  and  answer 
the  bill ;  and,  unless  otherwise  provided  in  these  rules  or  specially 
ordered  by  the  court,  a  writ  of  attachment  and,  if  the  defendant 
cannot  be  found,  a  writ  of  sequestration,  or  a  writ  of  assistance 
to  enforce  a  delivery  of  possession,  as  the  case  may  require,  shall 


Equity  Rules  603 

be  the  proper  process  to  issue  for  the  purpose  of  compelling  obe- 
dience to  any  interlocutory  or  final  order  or  decree  of  the  court. 

Rule  8.  Enforcement  of  final  decrees.  Final  process  to  exe- 
cute any  decree  may,  if  the  decree  be  solely  for  the  payment  of 
money,  be  by  writ  of  execution,  in  the  form  used  in  the  district 
court  in  suits  at  common  law  in  actions  of  assumpsit.  If  the 
decree  be  for  the  performance  of  any  specific  act,  as,  for  example, 
for  the  execution  of  a  conveyance  of  land  or  the  delivering  up  of 
deeds  or  other  documents,  the  decree  shall,  in  all  cases,  prescribe 
the  time  within  which  the  act  shall  be  done,  of  which  the  defend- 
ant shall  be  bound,  without  further  service,  to  take  notice;  and 
upon  affidavit  the  plaintiff,  filed  with  the  clerk's  office  that  the 
same  has  not  been  complied  with  within  the  prescribed  time,  the 
clerk  shall  issue  a  writ  of  attachment  against  the  delinquent  party, 
from  which,  if  attached  thereon,  he  shall  not  be  discharged,  un- 
less upon  a  full  compliance  with  the  decree  and  the  payment  of 
all  costs,  or  upon  a  special  order  of  the  court,  or  a  judge  thereof, 
upon  motion  and  affidavit,  enlarging  the  time  for  the  perform- 
ance thereof.  If  the  delinquent  party  cannot  be  found  a  writ  of 
sequestration  shall  issue  against  his  estate,  upon  the  return  of  non 
est  inventus,  to  compel  obedience  to  the  decree.  If  a  mandatory 
order,  injunction  or  decree  for  the  specific  performance  of  any 
act  or  contract  be  not  complied  with,  the  court  or  a  judge,  be- 
sides, or  instead  of,  proceedings  against  the  disobedient  party 
for  a  contempt  or  by  sequestration,  may  by  order  direct  that 
the  act  required  to  be  done  be  done,  so  far  as  practicable,  by  some 
other  person  appointed  by  the  court  or  judge,  at  the  cost  of  the 
disobedient  party,  and  the  act,  when  so  done,  shall  have  like 
effect  as  if  done  by  him. 

Rule  9.  Writ  of  assistance.  When  any  decree  or  order  is  for 
the  delivery  of  possession,  upon  proof  made  by  affidavit  of  a  de- 
mand and  refusal  to  obey  the  decree  or  order,  the  party  pros- 
ecuting the  same  shall  be  entitled  to  a  writ  of  assistance  from 
the  clerk  of  the  court. 

Rule  10.  Decree  for  deficiency  in  foreclosures,  etc.  In  suits 
for  the  foreclosure  of  mortgages,  or  the  enforcement  of  other 
liens,  a  decree  may  be  rendered  for  any  balance  that  may  be 
found  due  to  the  plaintiff  over  and  above  the  proceeds  of  the  sale 
or  sales,  and  execution  may  issue  for  the  collection  of  the  same, 


604  Appendix 

as  is  provided  in  rule  8  when  the  decree  is  solely  for  the  payment 
of  money. 

Rule  11.    Process  in  behalf  of  and  against  persons  not  parties. 

Every  person,  not  being  a  party  in  any  cause,  who  has  obtained 
an  order,  or  in  whose  favor  an  order  shall  have  been  made,  may 
enforce  obedience  to  such  order  by  the  same  process  as  if  he  were 
a  party;  and  every  person,  not  being  a  party,  against  whom 
obedience  to  any  order  of  the  court  may  be  enforced,  shall  be 
liable  to  the  same  process  for  enforcing  obedience  to  such  orders 
as  if  he  were  a  party. 

Rule  12.  Issue  of  subpoena — Time  for  answer.  Whenever  a 
bill  is  filed,  and  not  before,  the  clerk  shall  issue  the  process  of 
subpoena  thereon,  as  of  course,  upon  the  application  of  the  plain- 
tiff, which  shall  contain  the  names  of  the  parties  and  be  return- 
able into  the  clerk's  office  twenty  days  from  the  issuing  thereof. 
At  the  bottom  of  the  subpoena  shall  be  placed  a  memorandum,  that 
the  defendant  is  required  to  file  his  answer  or  other  defense  in  the 
clerk's  office  on  or  before  the  twentieth  day  after  service,  exclud- 
ing the  day  thereof;  otherwise  the  bill  may  be  taken  'pro  confesso. 
Where  there  are  more  than  one  defendant,  a  writ  of  subpoena 
ma3%  at  the  election  of  the  plaintiff,  be  sued  out  separately  for 
each  defendant,  or  a  joint  subpoena  against  all  the  defendants. 

Rule  13.  Manner  of  serving  subpoena.  The  service  of  all  sub- 
poenas shall  be  by  delivering  a  copy  thereof  to  the  defendant  per- 
sonally, or  by  leaving  a  copy  thereof  at  the  dwelling-house  or 
usual  place  of  abode  of  each  defendant,  with  some  adult  person 
who  is  a  member  of  or  resident  in  the  family. 

Rule  14.  Alias  subpoena.  Whenever  any  subpoena  shall  be 
returned  not  executed  as  to  any  defendant,  the  plaintiff  shall  be 
entitled  to  other  subpoenas  against  such  defendant. 

Rule  15.  Process,  by  whom  served.  The  service  of  all  proc- 
ess, mesne  and  final,  sliall  be  by  the  marshal  of  the  district,  or 
his  deputy,  or  by  some  ollior  person  specially  appointed  by  the 
court  or  judge  f(jr  thai  i)ui'pose,  and  not  olhorwise.  Tn  the  latter 
(•;iK(',  tlic  |)('i-son  s('i-vin;r  tlic  process  sliall  iiuikc  affidavit  thereof. 

Rule  16.     Defendant  to  answer — Default — Decree  pro  confesso. 

1 1    sliall   he   llic  (hitv   of  fbe  defendant,   unless  the  time  shall  be 


Equity  Rules  605 

enlarged,  for  causes  shown,  by  a  judge  of  the  court,  to  file  his 
answer  or  other  defense  to  the  bill  in  the  clerk's  office  within  the 
time  named  in  the  subpoena  as  required  by  rule  12.  In  default 
thereof  the  plaintiff  may,  at  his  election,  take  an  order  as  of  course 
that  the  bill  be  taken  pro  confesso;  and  thereupon  the  cause  shall 
be  proceeded  in  ex  parte. 

Rule  17.  Decree  pro  confesso  to  be  followed  by  final  decree — 
Setting  aside  default.  When  the  bill  is  taken  pro  confesso  the 
court  may  proceed  to  a  final  decree  at  any  time  after  the  expira- 
tion of  thirty  days  after  the  entry  of  the  order  pro  confesso,  and 
such  decree  shall  be  deemed  absolute,  unless  the  court  shall,  at 
the  same  term,  set  aside  the  same,  or  enlarge  the  time  for  filing 
the  answer,  upon  cause  shown  upon  motion  and  affidavit.  No 
such  motion  shall  be  granted,  unless  upon  the  payment  of  the 
costs  of  the  plaintiff  up  to  that  time,  or  such  part  thereof  as  the 
court  shall  deem  reasonable,  and  unless  the  defendant  shall  un- 
dertake to  file  his  answer  within  such  time  as  the  court  shall  direct, 
and  submit  to  such  other  terms  as  the  court  shall  direct,  for  the 
purpose  of  speeding  the  cause. 

Rule  18.  Pleadings — Technical  forms  abrogated.  Unless 
otherwise  prescribed  by  statute  or  these  rules  the  technical  forms 
of  pleading  in  equity  are  abolished. 

Rule  19.  Amendments  generally.  The  court  may  at  any  time, 
in  furtherance  of  justice,  upon  such  terms  as  may  be  just,  permit 
any  process,  proceeding,  pleading  or  record  to  be  amended,  or 
material  supplemental  matter  to  be  set  forth  in  an  amended  or 
supplemental  pleading.  The  court,  at  every  stage  of  the  proceed- 
ing, must  disregard  any  error  or  defect  in  the  proceeding  which 
does  not  affect  the  substantial  rights  of  the  parties. 

Rule  20.  Further  and  particular  statement  in  pleading  may  be 
required.  A  further  and  better  statement  of  the  nature  of  the 
claim  or  defense,  or  further  and  better  particulars  of  any  matter 
stated  in  any  pleading,  may  in  any  case  be  ordered,  upon  such 
terms,  as  to  costs  and  otherwise,  as  may  be  just. 

Rule  21.  Scandal  and  impertinence.  The  right  to  except  lo 
bills,  answers,  and  other  proceedings  for  scandal  or  impertinence 
shall  not  obtain,  but  the  court  may,  upon  motion  or  its  own  initia- 


606  Appendix 

tive,    order    any    redundant,    impertinent    or    scandalous    matter 
stricken  out,  upon  such  terms  as  the  court  shall  think  fit. 

Rule  22.  Action  at  law  erroneously  begun  as  suit  in  equity — 
Transfer.  If  at  any  time  it  appear  that  a  suit  commenced  in 
equity  should  have  been  brought  as  an  action  on  the  law  side  of 
the  court,  it  shall  be  forthwith  transferred  to  the  law  side  and  be 
there  proceeded  with,  with  only  such  alteration  in  the  pleadings  as 
shall  be  essential. 

Rule  23.  Matters  ordinarily  determinable  at  law,  when  arising 
in  suit  in  equity  to  be  disposed  of  therein.  If  in  a  suit  in  equity  a 
matter  ordinarily  determinable  at  law  arises,  such  matter  shall  be 
determined  in  that  suit  according  to  the  principles  applicable, 
without  sending  the  case  or  question  to  the  law  side  of  the  court. 

Rule  24.  Signature  of  counsel.  Every  bill  or  other  pleading 
shall  be  signed  individuallj^  by  one  or  more  solicitors  of  record, 
and  such  signatures  shall  be  considered  as  a  certificate  by  each 
solicitor  that  he  has  read  the  pleading  so  signed  by  him ;  that  upon 
the  instructions  laid  before  him  regarding  the  case  there  is  good 
ground  for  the  same ;  that  no  scandalous  matter  is  inserted  in  the 
pleading;  and  that  it  is  not  interposed  for  delay. 

Rule  25.  Bill  of  complaint — Contents.  Hereafter  it  shall  be 
sufficient  that  a  bill  in  equity  shall  contain,  in  addition  to  the 
usual  caption: 

First,  the  full  name,  when  known,  of  each  plaintiff  and  de- 
fendant, and  the  citizenship  and  residence  of  each  party.  If  any 
party  be  under  any  disability  that  fact  shall  be  stated. 

Second,  a  short  and  plain  statement  of  the  grounds  upon  which 
the  court's  jurisdiction  depends. 

Third,  a  short  and  simple  statement  of  tlie  ultimate  facts  upon 
which  the  plaintiff  asks  relief,  omitting  anj'^  mere  statement  of 
evidence. 

Fourth,  if  there  are  persons  other  than  those  named  as  de- 
fendants who  appear  to  be  proper  parties,  the  bill  should  state 
why  they  are  not  made  parties — as  that  they  are  not  within  the 
jurisdiction  of  the  court,  or  cannot  be  made  parties  without  ousting 
the  jurisdiction. 

Fifth,  n  statement  of  and  prayer  for  any  special  relief  pending 
the  suit  or  on  final  hearing,  which  may  be  staled  and  sought  in 


Equity  Rules  607 

alternative  forms.  If  special  relief  pending  the  suit  be  desired 
the  bill  should  be  verified  by  the  oath  of  the  plaintiff,  or  someone 
having  knowledge  of  the  facts  upon  which  such  relief  is  asked. 

Rule  26.  Joinder  of  causes  of  action.  The  plaintiff  may  join 
in  one  bill  as  many  causes  of  action,  cognizable  in  equity,  as  he 
may  have  against  the  defendant.  But  when  there  is  more  than 
one  plaintiff,  the  causes  of  action  joined  must  be  joint,  and  if  there 
be  more  than  one  defendant  the  liability  nnist  be  one  asserted 
against  all  of  the  material  defendants,  or  sufficient  grounds  must 
appear  for  uniting  the  causes  of  action  in  order  to  promote  the 
convenient  administration  of  justice.  If  it  appear  that  any  such 
cause  of  action  cannot  be  conveniently  disposed  of  together,  the 
court  may  order  separate  trials. 

Rule  27.  Stockholder's  hill.  Every  bill  brought  by  one  or 
more  stockholders  in  a  corporation  against  the  corporation  and 
other  parties,  founded  on  rights  which  may  properly  be  asserted 
by  the  corporation,  must  be  verified  by  oath,  and  must  contain  an 
allegation  that  the  plaintiff  was  a  shareholder  at  the  time  of  the 
transaction  of  which  he  complains,  or  that  his  share  had  devolved 
on  him  since  by  operation  of  law,  and  that  the  suit  is  not  a  col- 
lusive one  to  confer  on  a  court  of  the  United  States  juris^diction 
of  a  case  of  which  it  would  not  otherwise  have  cognizance.  It 
must  also  set  forth  with  particularity  the  efforts  of  the  plaintiff 
to  secure  such  action  as  he  desires  on  the  part  of  the  managing 
directors  or  trustees,  and,  if  necessary,  of  the  shareholders,  and 
the  causes  of  his  failure  to  obtain  such  action,  or  the  reasons  for 
not  making  such  effort. 

Rule  28.  Amendment  of  bill  as  of  course.  The  plaintiff  may, 
as  of  course,  amend  his  bill  before  the  defendant  has  responded 
thereto,  but  if  such  amendment  be  filed  after  any  copy  has  issued 
from  the  clerk's  office,  the  plaintiff  at  his  own  cost  shall  furnish  to 
the  solicitor  of  record  of  each  opposing  party  a  copy  of  the  bill 
as  amended,  unless  otherwise  ordered  by  the  court  or  judge. 

After  pleading  filed  by  any  defendant,  plaintiff  may  amend 
only  by  consent  of  the  defendant  or  leave  of  the  court  or  judge. 

Rule  29.  Defenses — How  presented.  Demurrers  and  pleas  are 
abolished.  Every  defense  in  point  of  law  arising  upon  the  face 
of  the  bill,  whether  for  misjoinder,  nonjoinder,  or  insufficiency 


608  Appendix 

of  fact  to  constitute  a  valid  cause  of  action  in  equity,  which  might 
heretofore  have  been  made  by  demurrer  or  plea,  shall  be  made 
by  motion  to  dismiss  or  in  the  answer;  and  every  such  point  of 
law  going  to  the  whole  or  a  material  part  of  the  cause  or  causes 
of  action  stated  in  the  bill  may  be  called  up  and  disposed  of  before 
final  hearing  at  the  discretion  of  the  court.  Every  defense  here- 
tofore presentable  by  plea  in  bar  or  abatement  shall  be  made  in 
the  answer  and  may  be  separately  heard  and  disposed  of  before 
the  trial  of  the  principal  case  in  the  discretion  of  the  court.  If 
the  defendant  move  to  dismiss  the  bill  or  any  part  thereof,  the 
motion  may  be  set  down  for  hearing  by  either  party  upon  five 
days'  notice,  and,  if  it  be  denied,  answer  shall  be  filed  within  five 
days  thereafter  or  a  decree  pro  confcsso  entered. 

Rule  30.  Answer — Contents — Counterclaim.  The  defendant 
in  his  answer  shall  in  short  and  simple  terms  set  out  his  defense 
to  each  claim  asserted  by  the  bill,  omitting  any  mere  statement  of 
evidence  and  avoiding  any  general  denial  of  the  averments  of  the 
bill,  but  specifically  admitting  or  denying  or  explaining  the  facts 
upon  which  the  plaintiff  relies,  unless  the  defendant  is  without 
knowledge,  in  which  case  he  shall  so  state,  such  statement  op- 
erating as  a  denial.  Averments  other  than  of  value  or  amount  of 
damage,  if  not  denied,  shall  be  deemed  confessed,  except  as  against 
an  infant,  lunatic  or  other  person  non  compos  and  not  under 
guardianship,  but  the  answer  may  be  amended,  by  leave  of  the 
court  or  judge,  upon  reasonable  notice,  so  as  to  put  any  aver- 
ment in  issue,  when  justice  requires  it.  The  answer  may  state  as 
many  defenses,  in  the  alternative,  regardless  of  consistency,  as 
llie  defendant  deems  essential  to  his  defense. 

The  answer  must  state  in  short  aiul  simple  form  any  counter- 
claim arising  out  of  the  transaction  which  is  the  subject  matter 
of  the  suit,  and  may,  without  cross-bill,  set  out  any  set-off  or 
counter-claim  against  the  plaintitV  wliich  might  be  the  subject  of 
an  independent  suit  in  equity  against  him,  aiul  such  set-off  or 
countei'-claim,  so  set  up  shall  have  the  sanu^  efi'ect  as  a  cross-suit, 
so  as  to  enable  the  coui't  to  i)ronounce  a  final  judgment  in  the 
same  suit  both  on  the  oi-iginal  and  cross-claims. 

Eule  31.  Reply — When  required — When  cause  at  issue.  Un- 
less llic  ;iii<\\('i-  assert  a  set  oft"  (ir  coniil  cr-claim,  no  reply  shall  be 
rc(juire(]  wiliiout  s[)ecial  ocder  of  the  couii  oi-  judge,  but  the  cause 
sliall  bo  deemed  at    issue  upon  the  tiling  of  the  answer,  and  any 


Equity  Rules  ,  G09 

now  or  affirmative  matter  therein  shall  be  deemed  to  be  denied  hy 
the  plaintiff.  If  the  answer  include  a  set-off  or  counter-claim  the 
party  against  whom  it  is  asserted  shall  reply  within  ten  days  after 
the  filing  of  the  answer,  unless  a  longer  time  be  allowed  by  the 
court  or  judge.  If  the  counter-claim  is  one  which  affects  the  rights 
of  other  defendants  they  or  their  solicitors  shall  be  served  with  a 
copy  of  the  same  within  ten  days  from  the  filing  thereof,  and  ten 
days  shall  be  accorded  to  such  defendants  for  filing  a  reply.  In 
default  of  a  reply,  a  decree  pro  confesso  on  the  counter-claim  may 
be  entered  as  in  default  of  an  answer  to  the  bill. 

Eule  32.  Answer  to  amended  bill.  In  every  case  where  an 
amendment  to  the  bill  shall  be  made  after  answer  filed,  the  de- 
fendant shall  put  in  a  new  or  supplemental  answer  within  ten 
days  after  that  on  which  the  amendment  or  amended  bill  is  filed, 
unless  the  time  is  enlarged  or  otherwise  ordered  by  a  judge  of  the 
court;  and  upon  his  default,  the  like  proceedings  may  be  had  as 
in  case  of  an  omission  to  put  in  an  answer. 

Rule  33.  Testing  sufficiency  of  defense.  Exceptions  for  in- 
sufficiency of  an  answer  are  abolished.  But  if  an  answer  set  up 
an  affirmative  defense,  set-off  or  counter-claim,  the  plaintiff  may, 
upon  five  days'  notice,  or  such  further  time  as  the  court  may  al- 
low, test  the  sufficiency  of  the  same  by  motion  to  strike  out.  If 
found  insufficient  but  amendable  the  court  may  allow  an  amend- 
ment upon  terms,  or  strike  out  the  matter. 

Rule  34.  Supplemental  pleading.  Upon  application  of  either 
party  the  court  or  judge  may,  upon  reasonable  notice  and  such 
terms  as  are  just,  permit  him  to  file  and  serve  a  supplemental  plead- 
ing, alleging  material  facts  occurring  after  his  former  pleading, 
or  of  which  he  was  ignorant  when  it  was  made,  including  the 
judgment  or  decree  of  a  competent  court  rendered  after  the  com- 
mencement of  the  suit  determining  the  matters  in  controversy  or 
a  part  thereof. 

Rule  35.    Bills  of  revivor  and  supplemental  bills — Form.    It 

shall  not  be  necessary  in  any  bill  of  revivor  or  supplemental  bill 
to  set  forth  any  of  the  statements  in  the  original  suit,  unless  the 
special  circumstances  of  the  case  may  require  it. 

Rule  36.    Officers    before    whom    pleadings    verified.    Every 
pleading  which  is  required  to  be  sworn  to  by  statute,  or  these 
Wheaton  C.  F.  P.— 39 


CIO  Al'l'EXDIX 

rules,  may  be  verified  before  any  justice  or  judge  of  any  court  of 
the  United  States,  or  of  any  state  or  territory,  or  of  the  District 
of  Columbia,  or  any  clerk  of  any  court  of  the  United  States,  or 
of  any  territory,  or  of  the  District  of  Columbia,  or  any  notary 
public. 

Rule  37.  Parties  generally — Intervention.  Every  action  shall 
be  prosecuted  in  the  name  of  the  real  party  in  interest,  but  an 
executor,  administrator,  guardian,  trustee  of  an  express  trust,  a 
party  with  whom  or  in  whose  name  a  contract  has  been  made 
for  the  benefit  of  another,  or  a  party  expressly  authorized  by 
statute,  may  sue  in  his  ovm.  name  without  joining  with  him  the 
party  for  whose  benefit  the  action  is  brought.  All  persons  having 
an  interest  in  the  subject  of  the  action  and  in  obtaining  the  relief 
demanded  may  join  as  plaintiffs,  and  any  person  may  be  made  a 
defendant  who  has  or  claims  an  interest  adverse  to  the  plaintiff. 
Any  person  may  at  any  time  be  made  a  party  if  his  presence  is 
necessary  or  proper  to  a  complete  determination  of  the  cause. 
Persons  having  a  united  interest  must  be  joined  on  the  same  side 
as  plaintiffs  or  defendants,  but  when  any  one  refuses  to  join,  he 
may  for  such  reason  be  made  a  defendant. 

Anyone  claiming  an  interest  in  the  litigation  may  at  any  time 
be  permitted  to  assert  his  right  by  intervention,  but  the  interven- 
tion shall  be  in  subordination  to,  and  in  recognition  of,  the  pro- 
priety of  the  main  proceeding. 

Rule  38.  Representatives  of  class.  "When  the  question  is  one 
of  common  or  general  interest  to  many  persons  constituting  a  class 
so  numerous  as  to  make  it  impracticable  to  bring  them  all  before 
the  court,  one  or  more  maj'  sue  or  defend  for  the  whole. 

Rule  39.    Absence  of  persons  who  would  be  proper  parties.    In 

all  cases  where  it  sliall  appear  to  the  court  that  persons,  who 
might  otherwise  be  deemed  pi-oper  i^arties  to  the  suit,  cannot  be 
made  parties  by  icjison  of  their  beinu-  out  of  the  jurisdiction  of 
the  court,  or  incapable  otiierwise  of  being  made  ])arties,  or  be- 
cause their  joinder  would  oust  the  jurisdiction  of  the  court  as  to 
the  parties  before  tlie  court,  tlie  coui-t  may,  in  its  discretion,  pro- 
ceed in  tlie  cause  without  making  such  persons  parties;  and  in 
such  cases  the  decree  slinll  1)e  witliout  prejudice  to  the  rights  of  the 
absent  parlies. 


Equity  Rules  •  611 

Rule  40.  Nominal  parties.  Where  uo  account,  payment,  con- 
veyance, or  other  direct  relief  is  sought  against  a  party  to  a  suit,  not 
being  an  infant,  the  party,  upon  service  of  the  subpoena  upon 
him,  need  not  ap])ear  and  answer  the  bill,  unless  the  plaintiff 
specially  requires  him  to  do  so  by  the  prayer ;  but  he  may  appear 
and  answer  at  his  option ;  and  if  he  does  not  appear  and  answer 
he  shall  be  bound  by  all  the  proceedings  in  the  cause.  If  the 
plaintiff  shall  require  him  to  appear  and  answer  he  shall  be  en- 
titled to  the  costs  of  all  the  proceedings  against  him,  unless  the 
court  shall  otherwise  direct. 

Rule  41.  Suit  to  execute  trusts  of  will — Heir  as  party.  In  suits 
to  execute  the  trusts  of  a  will,  it  shall  not  be  necessary  to  make 
the  heir  at  law  a  party;  but  the  plaintiff  shall  be  at  liberty  to 
make  the  heir  at  law  a  party  where  he  desires  to  have  the  wall 
established  against  him. 

Rule  42.  Joint  and  several  demands.  In  all  cases  in  which  the 
plaintiff  has  a  joint  and  several  demand  against  several  persons, 
either  as  principals  or  sureties,  it  shall  not  be  necessary  to  bring 
before  the  court  as  parties  to  a  suit  concerning  such  demand  all 
the  persons  liable  thereto;  but  the  plaintiff  may  proceed  against 
one  or  more  of  the  persons  severally  liable. 

Rule  43.  Defect  of  parties — Resisting  objection.  Where  the 
defendant  shall  by  his  answer  suggest  that  the  bill  of  complaint  is 
defective  for  want  of  parties,  the  plaintiff  may,  within  fourteen 
days  after  answ-er  filed,  set  down  the  cause  for  argument  as  a  mo- 
tion upon  that  objection  only ;  and  where  the  plaintiff  shall  not  so 
set  down  his  cause,  but  shall  proceed  therewith  to  a  hearing,  not- 
withstanding an  objection  for  want  of  parties  taken  by  the  an- 
swer, he  shall  not  at  the  hearing  of  the  cause,  if  the  defendant's 
objection  shall  be  allowed,  be  entitled  as  of  course  to  an  order  to 
amend  his  bill  by  adding  parties ;  but  the  court  shall  be  at  lib- 
erty to  dismiss  the  bill,  or  to  allow  an  amendment  on  such  terms 
as  justice  may  require. 

Rule  44.  Defect  of  parties — Tardy  objection.  If  a  defendant 
shall,  at  the  hearing  of  a  cause,  object  that  a  suit  is  defective  for 
want  of  parties,  not  having  by  motion  or  answer  taken  the  objec- 
tion and  therein  specified  by  name  or  description  the  parties  to 


612  Appendix 

whom  the  objection  applies,  the  court  shall  be  at  liberty  to  make  a 
decree  saving  the  rights  of  the  absent  parties. 

Rule  45.  Death  of  party — Revivor.  In  the  event  of  the  death 
of  either  party  the  court  may,  in  a  proper  case,  upon  motion,  order 
the  suit  to  be  revived  by  the  substitution  of  the  proper  parties. 
If  the  successors  or  representatives  of  the  deceased  party  fail  to 
make  such  application  within  a  reasonable  time,  then  any  other 
party  may,  on  motion,  apply  for  such  relief,  and  the  court,  upon 
any  such  motion  may  make  the  necessary  orders  for  notice  to  the 
parties  to  be  substituted  and  for  the  filing  of  such  pleadings  or 
amendments  as  may  be  necessary. 

Rule  46.  Trial — Testimony  usually  taken  in  open  court — Rul- 
ings on  objections  to  evidence.  In  all  trials  in  equity  the  testi- 
mony of  witnesses  shall  be  taken  orally  in  open  court,  except  as 
otherwise  provided  by  statute  or  these  rules.  The  court  shall  pass 
upon  the  admissibility  of  all  evidence  offered  as  in  actions  at  law. 
When  evidence  is  offered  and  excluded,  and  the  party  against  whom 
the  ruling  is  made  excepts  thereto  at  the  time,  the  court  shall  take 
and  report  so  much  thereof,  or  make  such  a  statement  respecting 
it,  as  will  clearly  show  the  character  of  the  evidence,  the  form  in 
which  it  was  offered,  the  objection  made,  the  ruling,  and  the  ex- 
ception. If  the  appellate  court  shall  be  of  opinion  that  the  evi- 
dence should  have  been  admitted,  it  shall  not  reverse  the  decree 
unless  it  be  clearly  of  opinion  that  material  prejudice  will  result 
from  an  affirmance,  in  which  event  it  shall  direct  such  further 
steps  as  justice  may  require. 

Rule  47.  Depositions — To  be  taken  in  exceptional  instances. 
The  court,  upon  application  of  either  party,  w^hen  allowed  by 
statute,  or  for  good  and  exceptional  cause  for  departing  from  the 
general  rule,  to  be  shoAvn  by  affidavit,  may  permit  the  deposition 
of  named  witnesses,  to  be  used  before  the  court  or  ujion  a  refer- 
ence to  a  master,  to  be  taken  before  an  examiner  or  other  named 
officer,  upon  the  notice  and  terms  specified  in  the  order.  All 
depositions  taken  under  a  statute,  or  under  any  such  order  of 
the  court,  sbfill  be  taken  and  filed  as  follows,  unless  otherwise 
ordered  by  the  court  or  judge  for  good  cause  shown:  Those  of 
the  plaint  iff  within  sixty  days  from  the  time  the  cause  is  at  issue; 
those  of  the  defendant  within  thirty  days  from  the  expiration  of 
the  time    for  the   filing  of   i)laintilT's   depositions;   and    rebutting 


Equity  Rules  013 

depositions  by  either  party  within  twenty  days  after  the  time  for 
taking  original  depositions  expites. 

Rule  48.  Testimony  of  expert  witnesses  in  patent  and  trade- 
mark cases.  In  a  case  involving  the  validity  or  scope  of  a  patent 
or  trade-mark,  the  district  court  may,  upon  petition,  order  that 
the  testimony  in  chief  of  expert  witnesses,  whose  testimony  is  di- 
rected to  matters  of  opinion,  be  set  forth  in  affidavits  and  filed  as 
follows :  Those  of  the  plaintiff  within  forty  days  after  the  cause 
is  at  issue ;  those  of  the  defendant  within  twenty  days  after  plain- 
tiff's time  has  expired;  and  rebutting  affidavits  within  fifteen  days 
after  the  expiration  of  the  time  for  filing  original  affidavits. 
Should  the  opposite  party  desire  the  production  of  any  affiant 
for  cross-examination,  the  court  or  judge  shall,  on  motion,  direct 
that  said  cross-examination  and  any  re-examination  take  place 
before  the  court  upon  the  trial,  and  unless  the  affiant  is  produced 
and  submits  to  cross-examination  in  compliance  with  such'  direc- 
tion, his  affidavit  shall  not  be  used  as  evidence  in  the  cause. 

Rule  49.  Evidence  taken  before  examiners,  etc.  All  evidence 
offered  before  an  examiner  or  like  officer,  together  with  any  ob- 
jections, shall  be  saved  and  returned  into  the  court.  Depositions, 
whether  upon  oral  examination  before  an  examiner  or  like  officer 
or  otherwise,  shall  be  taken  upon  questions  and  answers  reduced 
to  writing,  or  in  the  form  of  narrative,  and  the  witness  shall  be 
subject  to  cross  and  re-examination. 

Rule  50.  Stenographer — Appointment — Fees.  "When  deemed 
necessary  by  the  court  or  officer  taking  testimony,  a  stenographer 
may  be  appointed  who  shall  take  down  testimony  in  shorthand  and, 
if  required,  transcribe  the  same.  His  fee  shall  be  fixed  by  the 
court  and  taxed  ultimately  as  costs.  The  expense  of  taking  a 
deposition,  or  the  cost  of  a  transcript,  shall  be  advanced  by  the 
party  calling  the  witness  or  ordering  the  transcript. 

Rule  51.  Evidence  taken  before  examiners,  etc.  Objections  to 
the  evidence,  before  an  examiner  or  like  officer,  shall  be  in  short 
form,  stating  the  grounds  of  objection  relied  upon,  but  no  tran- 
script filed  by  such  officer  shall  include  argument  or  debate.  The 
testimony  of  each  witness,  after  being  reduced  to  writing,  shall 
be  read  over  to  or  by  him,  and  shall  be  signed  by  him  in  the  pres- 
cn(  c  of  the  officer;  provided,  that  if  the  witness  shall  refuse  to 


614  Appendix 

sign  his  deposition  so  taken,  the  officer  shall  sign  the  same,  stating 
upon  the  record  the  reasons,  if  any,  assigned  by  the  witness  for 
such  refusal.  Objection  to  any  question  or  questions  shall  be  noted 
by  the  officer  upon  the  deposition,  but  he  shall  not  have  power  to 
decide  on  the  competency  or  materiality  or  relevancy  of  the  ques- 
tions. The  court  shall  have  power,  and  it  shall  be  its  duty,  to  deal 
with  the  costs  of  incompetent  and  immaterial  or  irrelevant  depo- 
sitions, or  parts  of  them,  as  may  be  just. 

Rule  52.  Attendance  of  witnesses  before  commissioner,  master 
or  examiner.  Witnesses  who  live  within  the  district,  and  whose 
testimony  may  be  taken  out  of  court  by  these  rules,  may  be  sum- 
moned to  appear  before  a  commissioner  appointed  to  take  testi- 
mony, or  before  a  master  or  examiner  appointed  in  any  cause,  by 
subpoena  in  the  usual  form,  which  may  be  issued  by  the  clerk  in 
blank  and  filled  up  by  the  party  praying  the  same,  or  bj'  the  com- 
missioner, master,  or  examiner,  requiring  the  attendance  of  the 
witnesses  at  the  time  and  place  specified,  who  shall  be  allowed 
for  attendance  the  same  compensation  as  for  attendance  in  court ; 
and  if  any  witness  shall  refuse  to  appear  or  give  evidence  it  shall 
be  deemed  a  contempt  of  the  court,  which  being  certified  to  the 
clerk's  office  by  the  commissioner,  master,  or  examiner,  an  attach- 
ment may  issue  thereupon  by  order  of  the  court  or  of  any  judge 
thereof,  in  the  same  manner  as  if  the  contempt  were  for  not  attend- 
ing, or  for  refusing  to  give  testimony  in,  the  court. 

In  case  of  refusal  of  witnesses  to  attend  or  be  sworn  or  to  an- 
swer any  question  put  by  the  commissioner,  master,  or  examiner, 
or  by  counsel  or  solicitor,  the  same  practice  shall  be  adopted  as 
is  now  practiced  with  respect  to  witnesses  to  be  produced  on 
examination  before  an  examiner  of  said  court  on  written  inter- 
rogatories. 

Rule  53.    Notice   of  taking  testimony  before  examiner,   etc. 

Xf)tic('  sliall  1)0  given  by  the  respective  counsel  or  parties  to  the 
opposite  counsel  or  parties  of  tlie  time  and  place  of  examination 
before  an  examiner  or  like  officer  for  such  reasonable  time  as  the 
court  or  officer  may  fix  by  order  in  each  case. 

Rule  54.  Deposition  under  Rev.  Stat.  §§  863,  865,  866,  867— 
Cross-examination.  After  a  causes  is  at  issue,  depositions  ma}''  be 
taken  as  provided  by  sections  863,  865,  866  and  867,  Revised  Stat- 
utes.    T'ut    if  in  any  case   no  notice  bas  been   given   tlie  opi)osit(' 


Squity  Rttles  615 

party  of  tlie  time  and  place  of  taking  the  depositions,  he  shall, 
upon  application  and  notice,  be  entitled  to  have  the  witness  ex- 
amined orally  before  the  court,  or  to  a  cross-examination  before 
an  examiner  or  like  officer,  or  a  new  deposition  taken  with  notice, 
as  the  court  or  judge  under  all  the  circumstances  shall  order. 

Rule  55.  Deposition  deemed  published  when  filed.  Upon  the 
filing  of  any  deposition  or  affidavit  taken  under  these  rules  or  any 
statute,  it  shall  be  deemed  published,  unless  otherwise  ordered  by 
the  court. 

Rule  56.  On  expiration  of  time  for  depositions,  case  goes  on 
trial  calendar.  After  the  time  has  elapsed  for  taking  and  filing 
depositions  under  these  rules,  the  case  shall  be  placed  on  the 
trial  calendar.  Thereafter  no  further  testimony  by  deposition 
shall  be  taken  except  for  some  strong  reason  shown  by  affidavit. 
In  every  such  application  the  reason  why  the  testimony  of  the 
witness  cannot  be  had  orally  on  the  trial,  and  why  his  deposition 
has  not  been  before  taken,  shall  be  set  forth,  together  with  the  tes- 
timony which  it  is  expected  the  witness  will  give. 

Rule  57.  Continuances.  After  a  cause  shall  be  placed  on  the 
trial  calendar  it  may  be  passed  over  to  another  day  of  the  same 
term,  by  consent  of  counsel  or  order  of  the  court,  but  shall  not 
be  continued  beyond  the  term  save  in  exceptional  cases  by  order 
of  the  court  upon  good  cause  shown  by  affidavit  and  upon  such 
terms  as  the  court  shall  in  its  discretion  impose.  Continuances 
beyond  the  term  by  consent  of  the  parties  shall  be  allowed  on 
condition  only  that  a  stipulation  be  signed  by  counsel  for  all  the 
parties  and  that  all  costs  incurred  theretofore  be  paid.  Thereupon 
an  order  shall  be  entered  dropping  the  case  from  the  trial  calen- 
dar, subject  to  reinstatement  within  one  year  upon  application  to 
the  court  by  either  party,  in  which  event  it  shall  be  heard  at  the 
earliest  convenient  day.  If  not  so  reinstated  within  the  year,  the 
suit  shall  be  dismissed  without  prejudice  to  a  new  one. 

Rule  58.  Discovery — Interrogatories — Inspection  and  produc- 
tion of  documents — Admission  of  execution  or  genuineness.    The 

plaintiff  at  any  time  after  filing  the  bill  and  not  later  than  twenty- 
one  days  after  the  joinder  of  issue,  and  the  defendant  at  any  time 
after  filing  his  answer  and  not  later  than  twenty-one  days  after 
the  joinder  of  issue,  and  either  party  at  any  time  thereafter  by 


616  Appendix 

leave  of  the  court  or  judge,  may  file  interrogatories  in  writing  for 
the  discovery  by  the  opposite  party  or  parties  of  facts  and  docu- 
ments material  to  the  support  or  defense  of  the  cause,  Avith  a  note 
at  the  foot  thereof  stating  which  of  the  interrogatories  each  of  the 
parties  is  reciuired  to  ansAver.  But  no  party  shall  file  more  than 
one  set  of  interrogatories  to  the  same  party  Avithout  leave  of  the 
court  or  judge. 

If  any  party  to  the  cause  is  a  public  or  private  corporation,  any 
opposite  party  may  apply  to  the  court  or  judge  for  an  order  al- 
lowing him  to  file  interrogatories  to  be  ansAvered  by  any  officer  of 
the  corporation,  and  an  order  may  be  made  accordingly  for  the 
examination  of  such  officer  as  may  appear  to  be  proper  upon  such 
interrogatories  as  the  court  or  judge  shall  think  fit. 

Copies  shall  be  filed  for  the  use  of  the  interrogated  party  and 
shall  be  sent  by  the  clerk  to  the  respective  solicitors  of  record,  or 
to  the  last  knoAvn  address  cf  the  opposite  party  if  there  be  no 
record  solicitor. 

Interrogatories  shall  be  ansAvered,  and  the  answers  filed  in  the 
clerk's  office,  within  fifteen  daA's  after  thcA'  have  been  served, 
unless  the  time  be  enlarged  by  the  court  or  judge.  Each  inter- 
rogatory shall  be  ansAvered  separately  and  fully  and  the  ansAA^ers 
shall  be  in  writing  under  oath,  and  signed  by  the  party  or  cor- 
porate officer  interrogated.  Within  ten  days  after  the  service  of 
interrogatories,  objections  to  them,  or  any  of  them,  may  be  pre- 
sented to  the  court  or  judge,  Avith  proof  of  notice  of  the  purpose 
so  to  do,  and  ansAvers  shall  be  deferred  until  the  objections  are 
determined,  which  shall  be  at  as  early  a  time  as  is  practicable. 
In  so  far  as  the  objections  are  sustained,  answers  shall  not  be  re- 
quired. 

The  court  or  judge,  upon  motion  and  reasonable  notice,  may 
make  all  such  orders  as  may  be  appropriate  to  enforce  answers 
to  interrogatories  or  to  effect  the  inspection  or  production  of  doc- 
uments in  the  possession  of  either  party  and  containing  evidence 
material  to  the  cause  of  action  or  defense  of  his  adversary.  Any 
party  failing  or  refusing  to  comply  Avith  such  an  order  sluill  be 
liable  to  attachment,  and  shall  also  be  liable,  if  a  plaintiff,  to  have 
his  bill  dismissed,  and,  if  a  defendant,  to  have  his  ansAver  stricken 
out  and  be  placed  in  the  same  situation  as  if  he  had  failed  to 
answer. 

I>y  a  demand  soivod  ten  days  before  the  trial,  either  party  may 
call  on  the  other  to  admit  iii  Avriting  tlie  execution  or  genuineness 
of  any  document,  letter  or  other  Avriting,  saving  all  just  cxcep- 


Equity  Rules  617 

tions;  and  if  such  admission  be  not  made  within  five  days  after 
such  service,  the  costs  of  proving  the  document,  letter  or  writing 
shall  be  paid  by  the  party  refusing  or  neglecting  to  make  such 
admission,  unless  at  the  trial  the  court  shall  find  that  the  refusal 
or  neglect  was  reasonable. 

Rule  59.  Reference  to  master — Exceptional,  not  usual.  Save 
in  matters  of  account,  a  reference  to  a  master  shall  be  the  excep- 
tion, not  the  rule,  and  shall  be  made  only  upon  a  showing  that 
some  exceptional  condition  requires  it.  When  such  a  reference  is 
made,  the  party  at  whose  instance  or  for  whose  benefit  it  is  made 
shall  cause  the  order  of  reference  to  be  presented  to  the  master 
for  a  hearing  within  twenty  days  succeeding  the  time  when  the 
reference  was  made,  unless  a  longer  time  be  specially  granted  by 
the  court  or  judge;  if  he  shall  omit  to  do  so,  the  adverse  party 
shall  be  at  liberty  forthwith  to  cause  proceedings  to  be  had  before 
the  master,  at  the  costs  of  the  party  procuring  the  reference. 

Rule  60.  Proceedings  before  master.  Upon  every  such  refer- 
ence, it  shall  be  the  duty  of  the  master,  as  soon  as  he  reason- 
ably can  after  the  same  is  brought  before  him,  to  assign  a  time  and 
place  for  proceedings  in  the  same,  and  to  give  due  notice  thereof 
to  each  of  the  parties,  or  their  solicitors ;  and  if  either  party  shall 
fail  to  appear  at  the  time  and  place  appointed,  the  master  shall 
be  at  liberty  to  proceed  ex  -parte,  or,  in  his  discretion,  to  adjourn 
the  examination  and  proceedings  to  a  future  da}^,  giving  notice  to 
the  absent  party  or  his  solicitor  of  such  adjournment ;  and  it  shall 
be  the  duty  of  the  master  to  proceed  with  all  reasonable  diligence 
in  every  such  reference,  and  with  the  least  practicable  delay,  and 
either  party  shall  be  at  liberty  to  apply  to  the  court,  or  a  judge 
thereof,  for  an  order  to  the  master  to  speed  the  proceedings  and 
to  make  his  report,  and  to  certify  to  the  court  or  judge  the  reason 
for  any  delay. 

Rule  61.  Master's  report — Documents  identified  but  not  set 
forth.  In  the  reports  made  by  the  master  to  the  court,  no  part 
of  any  state  of  facts,  account,  charge,  affidavit,  deposition,  exam- 
ination, or  answer  brought  in  or  used  before  him  shall  be  stated 
or  recited.  But  such  state  of  facts,  account,  charge,  affidavit, 
deposition,  examination,  or  answer  shall  be  identified,  and  referred 
to,  so  as  to  inform  the  court  what  state  of  facts,  account,  charge, 


618  Appendix 

affidavit,  deposition,  examination,  or  answer  were  so  brought  in 
or  used. 

Rule  62.  Powers  of  master.  The  master  shall  regulate  all 
the  proceedings  in  every  hearing  before  him,  upon  every  refer- 
ence; and  he  shall  have  full  authority  to  examine  the  parties  in 
the  cause,  upon  oath,  touching  all  matters  contained  in  the  ref- 
erence; and  also  to  require  the  production  of  all  books,  papers, 
writings,  vouchers,  and  other  documents  applicable  thereto;  and 
also  to  examine  on  oath,  viva  voce,  all  witnesses  produced  .by  the 
parties  before  him,  or  by  deposition,  according  to  the  acts  of  Con- 
gress, or  otherwise,  as  here  provided ;  and  also  to  direct  the  mode 
in  which  the  matters  requiring  evidence  shall  be  proved  before 
him;  and  generally  to  do  all  other  acts,  and  direct  all  other  in- 
quiries and  proceedings  in  the  matters  before  him,  which  he  may 
deem  necessary  and  proper  to  the  justice  and  merits  thereof  and 
the  rights  of  the  parties. 

Rule  63.  Form  of  accounts  "before  master.  All  parties  account- 
ing before  a  master  shall  bring  in  their  respective  accounts  in  the 
form  of  debtor  and  creditor;  and  any  of  the  other  parties  who 
shall  not  be  satisfied  with  the  account  so  brought  in  shall  be  at 
liberty  to  examine  the  accounting  party  viva  voce,  or  upon  inter- 
rogatories, as  the  master  shall  direct. 

Rule  64.  Former  deposition,  etc.,  may  be  used  before  master. 
All  affidavits,  depositions  and  documents  which  have  been  pre- 
viously made,  read,  or  used  in  the  court  upon  any  proceeding  in 
any  cause  or  matter  may  be  used  before  the  master. 

Rule  65.     Claimants  before  master  examinable  by  him.     The 

master  shall  be  at  liberty  to  examine  any  creditor  or  other  person 
coming  in  to  claim  before  him,  either  upon  written  interrogatories 
or  viva  voce,  or  in  both  modes,  as  the  nature  of  the  case  may  ap- 
pear to  him  to  require.  The  evidence  upon  such  examinations 
shall  be  taken  down  by  the  master,  or  by  some  other  person  by 
his  order  and  in  his  presence,  if  either  party  requires  it,  in  order 
that  the  same  may  be  used  l)y  the  court  if  necessary. 

Rule  66.     Return    of    master's    report — Exceptions — Hearing. 

Tlic  maslei-,  as  sooji  ;is  his  rcpofl  is  rcjidy,  sIkiII  rcMnni  Hie  same 
into  Hie  cld-k's  oJ'fice  and   llie  dav  ol"  llie  retiii-ii   sli;!'!!   be  entered 


Equity  Rules  G19 

by  the  clerk  in  the  Equity  Docket.  The  parties  shall  have  twenty 
days  from  the  time  of  the  filing  of  the  report  to  file  exceptions 
thereto,  and  if  no  exceptions  are  within  that  period  filed  by  either 
party,  the  report  shall  stand  confirmed.  If  exceptions  are  filed, 
they  shall  stand  for  hearing  before  the  court,  if  then  in  session, 
or,  if  not,  at  the  next  sitting  held  thereafter,  by  adjournment  or 
otherwise. 

Rule  67.  Costs  on  exceptions  to  master's  report.  In  order  to 
prevent  exceptions  to  reports  from  being  filed  for  frivolous  causes, 
or  for  mere  delay,  the  party  whose  exceptions  are  overruled  shall, 
for  every  exception  overruled,  pay  five  dollars  costs  to  the  other 
party,  and  for  every  exception  allowed  shall  be  entitled  to  the  same 
costs. 

Rule  68.  Appointment  and  compensation  of  masters.  The  dis- 
trict courts  may  appoint  standing  masters  in  chancery  in  their 
respective  districts  (a  majority  of  all  the  judges  thereof  concur- 
ring in  the  appointment),  and  they  may  also  appoint  a  master 
pro  hac  vice  in  any  particular  case.  The  compensation  to  be  al- 
lowed to  every  master  shall  be  fixed  by  the  district  court,  in  its 
discretion,  having  regard  to  all  the  circumvstances  thereof,  and  the 
compensation  shall  be  charged  upon  and  borne  by  such  of  tlie 
parties  in  the  cause  as  the  court  shall  direct.  The  master  shall 
not  retain  his  report  as  security  for  his  compensation ;  but  when 
the  compensation  is  allowed  by  the  court,  he  shall  be  entitled  to  an 
attachment  for  the  amount  against  the  party  who  is  ordered  to 
pay  the  same,  if,  upon  notice  thereof,  he  does  not  pay  it  within  the 
time  prescribed  by  the  court. 

Rule  69.  Petition  for  rehearing.  Every  petition  for  a  rehear- 
ing shall  contain  the  special  matter  or  cause  on  which  such  re- 
hearing is  applied  for,  shall  be  signed  by  counsel,  and  the  facts 
therein  stated,  if  not  apparent  on  the  record,  shall  be  verified  by 
the  oath  of  the  party  or  by  some  other  person.  No  rehearing  shall 
be  granted  after  the  term  at  which  the  final  decree  of  the  court 
shall  have  been  entered  and  recorded,  if  an  appeal  lies  to  the  cir- 
cuit court  of  appeals  or  the  supreme  court.  But  if  no  appeal  lies, 
the  petition  may  be  admitted  at  any  time  before  the  end  of  the 
next  term  of  the  court,  in  the  discretion  of  the  court. 

Rule  70.  Suits  by  or  against  incompetents.  Guardians 
ad  litem  to  defend  a  suit  may  be  appointed  by  the  court,  or  by 


620  AppE>roix 

an}'  judge  tliereof,  for  infants  or  other  persons  who  are  under 
guardianship,  or  otherwise  incapable  of  suing  for  themselves.  All 
infants  and  other  persons  so  incapable  may  sue  by  their  guardians, 
if  any,  or  by  their  prochein  ami;  subject,  however,  to  such  orders 
as  the  court  or  judge  may  direct  for  the  protection  of  infants  and 
other  persons. 

Rule  71.  Form  of  decree.  In  drawing  up  decrees  and  orders, 
neither  the  bill,  nor  answer,  nor  other  pleadings,  nor  any  part 
thereof,  nor  the  report  of  any  master,  nor  any  other  prior  pro- 
ceeding, shall  be  recited  or  stated  in  the  decree  or  order ;  but  the 
decree  and  order  shall  begin,  in  substance,  as  follows :  ' '  This  cause 
came  on  to  be  heard  (or  to  be  further  heard,  as  the  case  may  be)  at 
this  term,  and  was  argued  by  counsel ;  and  thereupon,  upon  con- 
sideration thereof,  it  was  ordered,  adjudged  and  decreed  as  fol- 
lows, viz:"    (Here  insert  the  decree  or  order.) 

Rule  72.    Correction  of  clerical  mistakes  in  orders  and  decrees. 

Clerical  mistakes  in  decrees  or  decretal  orders,  or  errors  arising 
from  any  accidental  slip  or  omission,  maj%  at  any  time  before  the 
close  of  the  term  at  which  final  decree  is  rendered,  be  corrected  by 
order  of  the  court  or  a  judge  thereof,  upon  petition,  without  the 
form  or  expense  of  a  hearing.     • 

Rule  73.  Preliminary  injunctions  and  temporary  restraining 
orders.  No  preliminary  injunction  shall  be  granted  without  notice 
to  the  opposite  party.  Nor  shall  any  temporary  restraining  order 
be  granted  without  notice  to  the  opposite  party,  unless  it  shall 
clearly  appear  from  specific  facts,  shown  by  affidavit  or  by  the 
verified  bill,  that  immediate  and  irreparable  loss  or  damage  will 
result  to  the  applicant  before  the  matter  can  be  heard  on  notice. 
In  case  a  temporary  restraining  order  shall  be  granted  without 
notice,  in  the  contingency  specified,  the  matter  shall  be  made  re- 
turnable at  the  earliest  possible  time,  and  in  no  event  later  than 
ten  days  from  the  date  of  the  order,  and  shall  take  precedence  of 
all  matters,  except  older  matters  of  the  same  character.  When 
the  matter  comes  up  for  hearing  the  party  who  obtained  the  tem- 
I)orary  restraining  order  shall  proceed  with  his  application  for  a 
preliminary  injunction,  and  if  he  does  not  do  so  the  court  shall 
dissoIv(?  his  lomi)orary  rosli-ainiug  oi'dor.  Upon  two  days'  notice 
to  the  party  •btaiming  sudi  temporary  restraining  order,  the  op- 
posite ])arty  in;iy  a|)pc;ir  .•iiid  move  tlie  dissolution  or  modification 


Equity  RutjEs  621 

of  the  order,  and  in  that  event  the  court  or  judge  shall  proceed 
to  hear  and  determine  the  motion  as  expeditiously  as  the  ends  of 
justice  may  require.  Every  temporary  restraining  order  shall  be 
forthwith  filed  in  the  clerk 's  office. 

Rule  74.  Injunction  pending^  appeal.  "When  an  appeal  from  a 
final  decree,  in  an  equity  suit,  granting  or  dissolving  an  injunc- 
tion, is  allowed  by  a  justice  or  a  judge  who  took  part  in  the  de- 
cision of  the  cause,  he  may,  in  his  discretion,  at  the  time  of  such 
allowance,  make  an  order  suspending,  modifying  or  restoring  the 
injunction  during  the  pendency  of  the  appeal,  upon  such  terms, 
as  to  bond  or  otherwise,  as  he  may  consider  proper  for  the  security 
of  the  rights  of  the  opposite  party. 

Rule  75.    Record  on  appeal — Reduction  and  preparation.     In 

ease  of  appeal : 

(a)  It  shall  be  the  duty  of  the  appellant  or  his  solicitor  to  file 
with  the  clerk  of  the  court  from  w^hich  the  appeal  is  prosecuted, 
together  with  proof  or  acknowledgment  of  service  of  a  copy  on 
the  appellee  or  his  solicitor,  a  praecipe  which  shall  indicate  the 
portions  of  the  record  to  be  incorporated  into  the  transcript  on 
such  appeal.  Should  the  appellee  or  his  solicitor  desire  additional 
portions  of  the  record  incorporated  into  the  transcript,  he  shall 
file  with  the  clerk  of  the  court  his  praecipe  also  within  ten  days 
thereafter,  unless  the  time  shall  be  enlarged  by  the  court  or  a 
judge  thereof,  indicating  such  additional  portions  of  the  record 
desired  by  him. 

(&)  The  evidence  to  be  included  in  the  record  shall  not  be  set 
forth  in  full,  but  shall  be  stated  in  simple  and  condensed  form,  all 
parts  not  essential  to  the  decision  of  the  questions  presented  by 
the  appeal  being  omitted  and  the  testimony  of  witnesses  being 
stated  only  in  narrative  form,  save  that  if  either  party  desires  it, 
and  the  court  or  judge  so  directs,  any  part  of  the  testimony  shall 
be  reproduced  in  the  exact  words  of  the  witness.  The  duty  of  so 
condensing  and  stating  the  evidence  shall  rest  primarily  on  the 
appellant,  who  shall  prepare  his  statement  thereof  and  lodge  the 
same  in  the  clerk's  office  for  the  examination  of  the  other  parties 
at  or  before  the  time  of  filing  his  praecipe  under  paragraph  a  of 
this  rule.  He  shall  also  notify  the  other  parties  or  their  solicitors 
of  such  lodgment  and  shall  name  a  time  and  place  when  he  will 
ask  the  court  or  judge  to  approve  the  statement,  the  time  so  named 
to  be  at  least  ten  days  after  such  notice.    At  the  expiration  of  the 


622  Appendix 

time  named  or  such  further  time  as  the  court  or  judge  may  allow, 
the  statement,  together  with  any  objections  made  or  amendments 
proposed  by  any  party,  shall  be  presented  to  the  court  or  the 
judge,  and  if  the  statement  be  true,  complete  and  properly  pre- 
pared, it  shall  be  approved  by  the  court  or  judge,  and  if  it  be 
not  true,  complete  or  properly  prepared,  it  shall  be  made  so  un- 
der the  direction  of  the  court  or  judge  and  shall  then  be  approved. 
When  approved,  it  shall  be  filed  in  the  clerk's  office  and  become  a 
part  of  the  record  for  the  purpose  of  the  appeal. 

(c)  If  any  difference  arise  between  the  parties  concerning  di- 
rections as  to  the  general  contents  of  the  record  to  be  prepared  on 
the  appeal,  such  difference  shall  be  submitted  to  the  court  or  judge 
in  conformitj'^  with  the  provisions  of  paragraph  h  of  this  rule  and 
shall  be  covered  by  the  directions  which  the  court  or  judge  may 
give  on  the  subject. 

Rule  76.  Record  on  appeal — Reduction  and  preparation — 
Costs — Correction  of  omissions.  In  preparing  the  transcript  on  an 
appeal,  especial  care  shall  be  taken  to  avoid  the  inclusion  of  more 
than  one  copy  of  the  same  paper  and  to  exclude  the  formal  and 
immaterial  parts  of  all  exhibits,  documents  and  other  papers  in- 
cluded therein ;  and  for  any  infraction  of  this  or  any  kindred  rule 
the  appellate  court  may  withhold  or  impose  costs  as  the  circum- 
stances of  the  case  and  the  discouragement  of  like  infractions  in 
the  future  may  require.  Costs  for  such  an  infraction  may  be  im- 
posed upon  offending  solicitors  as  well  as  parties. 

If,  in  the  transcript,  anything  material  to  either  party  be  omit- 
ted by  accident  or  error,  the  appellate  court,  on  a  proper  sugges- 
tion or  its  own  motion,  may  direct  that  the  omission  be  corrected 
by  a  supplemental  transcript. 

Rule  77.  Record  on  appeal — Agreed  statement.  When  the 
questions  presented  ])y  an  api)oal  can  l)e  detci-niined  by  the  ap- 
pcHate  I'oui-t  without  an  examination  of  all  the  pleadings  and 
evidence,  the  parties,  willi  the  approval  of  the  "district  court  or 
the  judge  thereof,  may  prepare  and  sign  a  statement  of  the  case 
showing  how  the  (lucslions  ai'ose  and  Avere  decided  in  tlie  district 
court  and  setting  I'or-lh  so  nnich  only  of  the  facts  alleged  and 
proved,  or  sought  to  he  i)roved,  as  is  essential  to  a  decision  of  such 
<|u«'stions  ])y  the  appellate  court.  Such  statement,  when  filed  in 
the  oflfice  of  the  clerk  of  the  district  con  it.  shall  be  treated  as  super- 
seding, for  the  [)nrp(»se  of  tlu'  appeal,  all  i)arts  of  the  record  otl»er 


Equity  Rules  623 

than  the  decree  from  which  the  appeal  is  taken,  and,  together  with 
such  decree,  shall  be  copied  and  certified  to  the  appellate  court  as 
the  record  on  appeal. 

Rule  78.  Affirmation  in  lieu  of  oath.  Whenever  under  these 
rules  an  oalh  is  or  may  l)e  j-equired  to  be  taken,  the  party  may, 
if  conscientiously  srrupulous  of  taking  an  oath,  in  lieu  thereof 
make  solemn  affirmation  to  the  truth  of  the  facts  stated  by  him. 

Rule  79.  Additional  rules  by  district  court.  With  the  concur- 
rence of  a  majority  of  the  circuit  judges  for  the  circuit,  the 
district  courts  may  make  any  other  and  further  rules  and  regu- 
lations for  the  practice,  proceedings  and  process,  mesne  and  final, 
in  their  respective  districts,  not  inconsistent  with  the  rules  hereby 
prescribed,  and  from  time  to  time  alter  and  amend  the  same. 

Rule  80.  Computation  of  time — Sundays  and  holidays.  When 
the  time  prescribed  by  these  rules  for  doing  any  act  expires  on  a 
Sunday  or  legal  holiday,  such  time  shall  extend  to  and  include 
the  next  succeeding  day  that  is  not  a  Sunday  or  legal  holiday. 

Rule  81.  These  rules  effective  February  1,  1913 — Old  rules 
abrogated.  These  rules  shall  be  in  force  on  and  after  February  1, 
1913,  and  shall  govern  all  proceedings  in  cases  then  pending  or 
thereafter  brought,  save  that  where  in  any  then  pending  cause 
an  order  has  been  made  or  act  done  which  cannot  be  changed 
without  doing  substantial  injustice,  the  court  may  give  effect  to 
such  order  or  act  to  the  extent  necessary  to  avoid  any  such  in- 
justice. 

All  rules  theretofore  prescribed  by  the  supreme  court,  regulat- 
ing the  practice  in  suits  of  equity,  shall  be  abrogated  when  these 
rules  take  effect. 


FORMS 

[These  forms  are  based  almost  entirely  on  the  Equity  Rules.] 

1.     PETITION 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 

Western   Division. 

A, 

Plaintiff, 

V8. 

B  Company,  a  corporation  un- 
der the  laws  of  Illinois, 

Defendant. 

Now  comes  the  plaintiff,  A,  and  for  a  cause  of  action  herein  says  that 
he  is  a  citizen  and  resident  of  Pomeroy,  Ohio,  in  the  Eastern  Division  of  the 
Southern  District  of  Ohio,  and  that  defendant,  B  Company,  is  a  corporation 
organized  and  existing  under  the  laws  of  Illinois  and  a  citizen  and  resident 
thereof,  with  its  principal  place  of  business  in  the  city  of  Chicago,  Illinois, 
and  with  a  branch  office  under  the  control  and  management  of  a  local  manager, 
located  at  No.  430  Owynne  Building,  Cincinnati,  Ohio;  that  the  matters 
involved  herein  amount  to  more  than  the  sum  of  three  thousand  dollars, 
exclusive  of  interest  and  costs;  that  defendant  holds  itself  out  as  in  the 
investment  and  brokerage  business,  and  engages  in  promoting  various  com- 
panies and  selling  the  capital  stock  thereof;  that  on  or  about  May  3,  1918, 
defendant  sold  to  plaintiff  two  thousand  and  eighty  shares  of  voting  trust 
certificates  of  the  common  stock  of  the  C  Corporation,  a  corporation  having 
its  principal  place  of  business  in  Sheboygan  Falls,  Wisconsin; 

That  the  price  at  which  defendant  sold  said  stock  to  plaintiff  was  seven 
dollars  ($7.00)  per  share,  making  a  total  purchase  price  of  fourteen  thou- 
sand five  hundred  and  sixty  dollars  ($14,560.00) ;  that  plaintiff  paid  three 
thousand  dollars  ($3,000.00)  cash  on  said  purchase,  and  pledged  with  de- 
fendant as  collateral  for  one  hundred  and  twenty  days  twenty  shares  of 
preferred  stock  of  the  Grant  Company  and  twenty  shares  of  the  common 
stock  of  the  Grant  Company; 

That  the  sale  of  said  stock  was  induced  by  certain  false  and  fraudulent 
representations  made  to  plaintiff;  that  defendant,  through  its  agent,  repre- 
sented to  plaintiff  that  defendant  corporation  was  a  five  million  dollar  cor- 
poration, that  it  had  made  money  for  all  its  clients  and  customers  who 
purchased  from  it  stock  of  the  C  Corporation  and  other  companies  which 
defendant  had  financed  and  for  whom  it  had  sold  stock; 

That  it  was  further  represented  to  plaintiff  by  defendant's  agent  that  the 
C  Corporation   stock   was   a  wonderful   bargain   at  seven    dollars  per   share; 

625 
Wheaton  C.  F.  P.— 40 


626  Appendix 

that  the  stock  yras  worth  a  great  deal  more  than  seven  dollars  per  share; 
that  the  C  Corporation  had  an  eight  million  dollar  contract  with  the  Gov- 
ernment; that  the  stock  of  the  C  Corporation  would  be  listed  by  defendant 
on  the  New  York  Curb  positively  on  June  15,  1918,  and  that  defendant 
thereupon  warranted  to  the  plaintiff  that  the  listing  of  said  stock  on  the 
New  York  Curb  would  be  on  or  before  June  15,  1918;  that  plaintiff,  in 
reliance  upon  said  statements  and  believing  them  to  be  true,  purchased  said 
two  thousand  and  eighty  shares  of  stock  of  the  C  Corporation. 

That  said  representations,  whereby  plaintiff  was  induced  to  buy  said  stock, 
were  false  and  fraudulent  in  this,  to  wit;  that  said  stock  was  not  worth  seven 
dollars  per  share,  but  was  only  worth  $3.50  to  $4.00  per  share,  and  that  said 
stock,  unknown  to  plaintiff,  had  at  that  time  a  market  value  of  only  that 
amount; 

That  defendant  corporation  was  not  a  five  million  dollar  corporation,  but 
capitalized  at  a  very  much  smaller  sum  of  money,  and  said  representation 
was  made  to  obtain  the  confidence  of  plaintiff;  that  defendant  had  not  made 
money  for  all  of  its  clients  and  customers  who  had  purchased  from  it  either 
stock  of  the  C  Corporation  or  the  stock  of  other  companies,  but  that  the  per- 
sons who  had  purchased  said  stock  of  the  C  Corporation  at  the  sum  of  seven  or 
eight  dollars  per  share  were  not  able  to  dispose  of  said  stock  for  the  price 
they  had  paid  for  it,  and  lost  money  wherever  they  sold  said  stock;  that  the 
C  Corporation  did  not  have  an  eight  million  dollar  contract  with  the  Govern- 
ment, and  said  representation  was  false  and  made  for  the  purpose  of  inducing 
proposed  customers  to  believe  that  the  profits  of  the  C  Corporation  were 
greater  than  they  actually  were;  that  said  stock  of  the  C  Corporation  was  not 
listed  on  the  New  York  Curb,  and  defendant  knew  that  it  would  not  be  listed 
on  the  Curb,  but  said  representation  was  made  for  the  purpose  of  inducing 
plaintiff  and  others  to  whom  said  statement  was  made  to  believe  that  the 
stock  so  purchased  could  be  sold  easily  and  at  an  advance  upon  the  price  to 
be  paid  for  said  stock;  that  defendant,  through  its  agents,  had  made  said 
representations  not  only  to  this  plaintiff,  but  to  many  others,  before  and  at 
the  time  of  the  transaction  herein  sot  out,  and  said  statement  was  false  and 
known  to  be  false,  both  on  former  occasions  and  at  the  time  it  was  made  to 
this   plaintiff; 

That  on  or  about  June  12,  1918,  defendant  sold  to  plaintiff  a  second 
block  of  C  Corporation  stock,  consisting  of  three  thousand  additional  shares 
of  C  Corporation  common  stock,  for  which  he  was  to  pay  eight  dollars  per 
share,  making  a  total  purchase  price  of  twenty-four  thousand  dollars  ($24,- 
000.00);   that  no  cash  was  given  to  defendant  in  this  transaction; 

That  defendant,  through  its  agent,  induced  plaintiff  to  make  said  purchase 
of  .stock  by  the  repetition  of  the  same  false  and  fraudulent  representations 
above  set  out,  at  tlie  time  of  the  sale  of  two  thousand  and  eighty  shares  of 
voting  trust  certificates  of  the  common  stock  of  said  corporation,  and  in 
addition  to  said  false  statements  above  set  out  defendant  warranted  to  thia 
plaintiff  that  the  stock  of  C  Corporation  would  be  listed  on  the  New  York 
Curb  poHitivcly  on  June  27,  1918; 

That  plaintiff  relied  upon  said  false  statements,  which  were  unknown  to 
him  to  be  false,  and  was  induced  thereby  to  make  said  second  purchase  of 
Btock ; 

That  at   the  tiiiH'  of  the  second   purchase  of  stock,  plaintiff   did   not  give 


Forms  627 

defendant  or  its  agents  any  cash,  but  turned  over  to  defendant  two  hundred 
shares  of  Ohio  Cities  Gas  Company  stock,  to  be  used  as  collateral  for  a  loan 
which  was  to  represent  the  purchase  price  of  said  three  thousand  shares  of 
stock,  said  loan  to  extend  for  a  period  of  not  to  exceed  ninety  days; 

That  plaintiff  hereby  offers  to  defendant  the  stock  of  the  C  Corporation, 
so  purchased  by  him,  and  demands  the  return  by  defendant  to  plaintiff  of  the 
money  paid  and  securities  heretofore  pledged  to  defendant  in  the  first  and 
second  transactions  set  out  above; 

That  there  is  danger  that  plaintiff  will  dispose  of  the  stocks  above  de- 
scribed, either  by  sale,  pledge  or  otherwise,  and  that  if  this  is  done,  defendant 
may  not  be  able  to  respond  in  damages  should  this  suit  be  decided  in  favor 
of  plaintiff. 

Wherefore  plaintiff  prays  for  a  rescission  of  the  contracts  of  sale  above 
set  out  and  described,  and  that  the  defendant  be  ordered  to  return  to  plaintiff 
the  sum  of  three  thousand  dollars  ($3,000.00)  that  plaintiff  paid  to  de- 
fendant, and  the  securities  above  set  out,  and  in  addition  plaintiff  asks  for 
the  cancellation  of  the  obligation  of  the  balance  of  the  purchase  price  of 
eaid  shares  of  the  C  Corporation;  that  plaintiff  be  granted  an  injunction 
restraining  defendant  from  in  any  way  disposing  of  the  stocks  described  in 
this  petition,  by  way  of  pledge,  sale  or  otherwise,  until  this  suit  has  been 
decided  by  the  Court,  and  for  such  further  and  other  relief  as  the  nature 
and  the  circumstances  of  this  case  may  require  and  to  the  Court  may  seem 
just. 

To  the  end  that  plaintiff  may  obtain  the  relief  to  which  he  is  justly  en- 
titled in  the  premises,  he  now  prays  the  Court  to  grant  him  new  process  by 
subpoena  directed  to  the  said  B  Company,  defendant  herein,  requiring  it  to 
answer,  but  not  under  oath,  the  same  being  expressly  waived,  all  allegations 
in  this  petition. 

D, 
E, 

Attorneys  for  Plaintiff. 

The  United  States  of  America,! 
Southern  District  of  Ohio,       ysa. 
Hamilton  County.  I 

On  this day  of 19.  .,  personally  appeared  A,  the  above- 
named  plaintiff,  who  made  solemn  oatli  that  he  had  read  the  foregoing 
petition  subscribed  by  him,  and  knows  the  contents  thereof,  and  the  same  is 
trne  of  his  knowledge,  except  as  to  matters  therein  related  on  information 
and  belief,  and  as  to  these  matters  he  believes  it  to  be  true. 

A. 

Sworn  to  before  me  and  subscribed  in  my  presence   this day  of 

19... 

N.  P., 
Notary    Public   in   and   for   Hamilton 
County,  Ohio. 


628  Appendix 

2.     PRAECIPE  FOR  SUBPOENA. 

UNITED  STATES  DISTRICT  COURT, 

SoxjTHERN  District  of  Ohio, 

Western  Divisiou. 


A, 

vs. 

B   Company, 


Plaintiff, 


hNo. 


Defejidant. 

To  B.  E.  Dilley,  CTerk  of  said  Court: 
Please  issue  Subpoena  in  Chancery. 


D, 

E, 

Attorneys  for  Plaintiff. 


3.     SUBPOENA  IN  CHANCERY. 

The  United  States  of  America,] 
Southern  District  of  Ohio,      l-ss. 
Western  Division. 

The    President   of   the    United   States   of    America. 
To  the  Marshal  of  the  Southern  District  of  Ohio,  Greeting: 

You  are  hereby  commanded  to  subpoena  B  Company,  a  corporation  under 
the   laws   of   Illinois, 

citizen  of  and  resident  in  the  State  of  Illinois,  if  it  ha  found  in  your  District 
to  be  and  appear  in  the  District  Court  of  the  United  States  for  the  Western 
Division  of  the  Southern  District  of  Ohio,  aforesaid,  at  Cincinnati,  to  answer 
a  certain  Bill  in  Chancery,  filed  and  exhibited  in  said  Court,  against  it  by  A, 

citizen  of  and  resident  in  the  State  of  Oliio 

Hereof  you  are  not  to  fail  imder  the  penalty  of  the  law  thence  ensuing. 

You    will   make   due  return   of   this   writ    on   or   before   the   31st   day    of 
October,   A.   D.   1918. 

Witness  the  Honorable  Howard  C.  Hollister,  Judge  of  tha 
District  Court  of  the  United  States,  this  11th  day  of  Octo- 
ber, A.  D.  1918,  and  in  the  143rd  year  of  tlio  Independence 
of  the  United  States  of  America. 

Attest:     B.  E.  Dilley,  Clerk. 
By  F.  V.  Lamb,  Deputy. 


Forms  629 


MEMORANDUM. 


The  said  defendant  is  required  to  file  its  answer  or  other  defense  in  this 
suit  in  the  Clerk's  OflB.ce  of  said  Court  on  or  before  the  twentieth  day  after 
service  of  this  subpoena,  excluding  the  day  thereof,  otherwise  the  said  bill  may 
be  taken  pro  confesso. 

B.  E.  DiLLEY,  Clerk. 
By  F.  V.  Lamb,  Deputy. 


4.     MOTION  FOR  A  TEMPORARY  RESTRAINING  ORDER. 

UNITED   STATES   DISTRICT   COURT, 

Southern  District  of  Ohio, 

Western  Division. 


Flaintiff, 


-Motion. 


B  Company, 

Defendant. 

Now  comes  the  plaintiff  and  moves  the  Court  for  a  temporary  restraining 
order,  in  accordance  with  the  prayer  of  the  petition  herein. 

D, 
E, 
F, 

Attorneys  for  Plaintiff. 

5.    NOTICE  OF  APPLICATION  FOR  RESTRAINING  ORDER. 

UNITED   STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 

Western  Division. 

No.  160. 

1 

vs.  > 

B  Company,  a  corporation,! 

You  are  hereby  notified  that  plaintiff  herein  will  apply  for  a  temporary 
restraining  order  in  the  above  cause,  before  Hon.  Howard  C.  Hollister,  Judge 
of  the  United  States  District  Court,  Cincinnati,  Ohio,  Government  Building, 
at  2:30  P.  M.,  Friday,  October  11,  1918. 


A. 
By    D, 


E, 
F, 

His  Attorneys. 


630  Appendix 


6.  ENTRY  GRANTING  RESTRAINING  ORDER. 


UNITED   STATES  DISTRICT  COURT, 

Southern  District  op  Ohio, 

Western  Division. 

No.  160. 


Entry. 


A, 

Plaintiff, 
vs. 
B  Company,  a  corporation,  un- 
der the  laws  of  Illinois. 

Defendant.. 

This  cause  came  on  to  be  heard  on  the  motion  of  plaintiff  for  a  temporary 
restraining  order  and  upon  notice  thereof  to  defendant,  and  a  hearing  in 
Court,  the  Court  doth  find  that  said  motion  should  be  granted,  and  it  is 
therefore  ordered  that  defendant  and  its  agents  be  and  they  are  hereby  tem- 
porarily restrained  from  in  any  way  disposing  by  sale,  pledge  or  otherwise 
of  the  stocks  held  by  defendant  as  collateral  and  described  in  the  petition 
herein,  and  that  defendant  and  its  agents  are  bound  by  this  order  until 
the  hearing  of  this  cause  by  the  Court,  or  the  further  order  of  the  Court. 

HoiiLisTEE,  Judge. 


7.     PRAECIPE  FOR  CERTIFIED  COPY  OF  TEMPORARY 
RESTRAINING  ORDER. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  op  Ohio, 

Western   Division. 

1 

va.  ^No.   160. 

B  Company,  J 

To  B.  E.  Dilley,  Clerk  of  said  Court: 

Please  issue  certified  copy  of  temporary  restraining  order  granted  herein 
on  October  11,  1918. 

D, 

E, 

Attorneys  for  Plaintiff. 


Forms  631 

8.     ENTRY  GRANTING  FURTHER  TIME  IN  WHICH 
TO  ANSWER. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 

Western  Division. 

No.  160. 

A, 

Plaintiff, 
vs. 
B   Company,  a  corporation   un-  "    "'■T- 
der  the  laws  of  Illinois, 

Defendant. 

On  application  of  the  ilefendant  and  with  consent  of  the  plaintiflF  and  for 
good  cause  shown,  the  Court  does  now  grant  the  defendant  thirty  days  further 
time  in  which  to  plead. 

HoLLiSTER,  Judge. 


9.     ANSWER. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 

Western   Division. 


No.   160. 


A, 

vs. 
B  Company, 


Plaintiff, 
Defendant. 


Answer    of    B    Company    to    the 
Petition    of   A. 


Answer. 


And  now  comes  tlie  defendant  B  Company,  sued  herein  as  B  Company  a 
corporation  organized  and  existing  under  the  laws  of  the  State  of  Illinois, 
and  for  answer  to  the  petition  of  A,  or  to  such  part  thereof  that  this  de- 
fendant is  advised  it  is  material  or  necessary  for  it  to  answer,  shows  that 
it  is  not  a  corporation  organized  and  existing  under  the  laws  of  the  State  of 
Illinois  as  alleged  in  the  plaintiff's  said  petition,  but  that  this  defendant  is 
a  common  law  trust  or  organization  existing  by  virtue  of  articles  of  association 
or  agreement  bearing  date  the  27th  day  of  December,  A.  D.  1917;  that  its 
affairs  and  the  several  transactions  named  in  plaintiff 's  petition  were  carried 
on  and  negotiated  by  this  defendant  and  petitioner  as  a  common  law  trust; 
that  R,  S,  and  T  are  the  trustees  of  this  defendant;  that  this  defendant  took 
over  the  capital  stock  and  business  of  C  Company  an  Illinois  corporation, 
D  Company  a  New  York  corporation,  E  Company  a  Delaware  corporation 
and  F  Company  a  California  corporation  on  or  about  the  1st  day  of  January, 
A.  D.  1918;  that  the  name  of  C  Company  an  Illinois  corporation  was  after- 


632  Appendix 

wards,  on  the  10th  day  of  April,  A.  D.  1918,  changed  to  C  Investment  Cor- 
poration, and  that  none  of  the  several  transactions  and  negotiations  mentioned 
in  plaintiff's  petition  were  carried  on  by  the  C  Investment  Corporation. 

Further  answering,  this  defendant  admits  that  it  is  a  citizen  and  resident 
of  the  State  of  Illinois,  with  its  place  of  business  in  the  City  of  Chicago, 
Illinois,  and  that  it  maintains  a  branch  office  in  the  City  of  Cincinnati,  State 
of  Ohio;  that  the  matters  involved  herein  amount  to  more  than  the  sum 
of  three  thousand  ($3,000.00)  dollars  exclusive  of  interest  and  costs;  that 
this  defendant  holds  itself  out  as  in  the  investment  and  brokerage  business, 
but  this  defendant  denies  that  it  engages  in  promoting  various  companies 
and  selling  the  capital  stock  thereof,  but  shows  unto  the  court  that  this  de- 
fendant has  heretofore,  and  did  purchase  all  of  the  stock  of  the  C  Corpora- 
tion, and  has  from  time  to  time  sold  its  holdings  of  capital  stock  in  said 
corporation  by  offerings  thereof  to  the  public  generally ;  and  admits  that  on 
or  about  May  3rd,  1918,  defendant  sold  to  plaintiff  2,080  shares  of  voting 
trust  certificates  of  the  common  stock  of  the  C  Corporation  at  a  price  of 
seven  ($7.00)  dollars  per  share,  making  a  total  purchase  price  of  fourteen 
thousand  five  hundred  and  sixty  ($14,560.00)  dollars;  that  plaintiff  paid 
three  thousand  ($3,000.00)  dollars  cash  on  said  purchase  and  pledged  with 
defendant  as  collateral  to  secure  the  balance  of  said  purchase  price  of  said 
stock  for  one  hundred  and  twenty  days  20  shares  of  preferred  stock  of  the 
Grant  Company,  and  20  shares  of  the  common  stock  of  the  Grant  Company, 
as  will  more  fully  appear  by  the  confirmation  agreement,  ready  to  be  pro- 
duced in  court,  a  copy  of  which  is  hereto  attached  marked  A,  and  made  a 
part  hereof. 

Further  answering,  this  defendant  denies  that  the  sale  of  said  stock  was 
induced  by  certain  false  and  fraudulent  representations  made  to  plaintiff, 
and  denies  that  this  defendant  through  its  agent  represented  to  plaintiff 
that  defendant  corporation  was  a  five  million  ($5,000,000.00)  dollar  corpora- 
tion, that  it  had  made  money  for  all  its  clients  and  customers  who  purchased 
from  it  stock  of  the  C  Corporation  and  other  companies  which  defendant  had 
financed,  and  for  whom  it  had  sold  stock. 

And  this  defendant  further  answering,  admits  that  it  was  represented  to 
plaintiff  by  defendant 's  agent  that  the  C  Corporation  stock  was  a  wonderful 
bargain  at  seven  ($7.00)  dollars  per  share,  and  that  the  stock  was  worth  a 
great  deal  more  than  $7.00  per  share,  but  denies  that  this  defendant  at  any 
time  represented  that  the  C  Corporation  had  an  eight  million  ($8,000,000.00) 
dollar  contract  with  the  Government,  and  that  tlio  stock  of  the  C  Corporation 
would  be  listed  by  this  defendant  on  the  New  York  Curb  positively  on  June 
15,  1918,  and  tliat  this  defendant  thereupon  warranted  to  the  plaintiff  that 
the  listing  of  said  stock  on  the  New  York  Curb  would  be  on  or  before  June 
15,  1918;  and  this  defendant  denies  that  the  plaintiff  in  reliance  upon  said 
statements  alleged  to  have  been  made  or  cither  of  them,  and  supposing  them 
to  be  true  purchased  said  2,080  shares  of  stock  of  the  C  Corporation,  and  on  the 
contrary  shows  that  the  plaintiff  purchased  the  said  stock  in  accordance  only 
with  the  terms  and  conditions  mentioned,  and  sliown  in  the  confirmation  agree- 
ment hereinabove  referred  to  and  made  a  part  of  this  bill  by  reference  as 
Exhibit  A. 

Further  answering  this  (Icfendnnt  d'^nii^s  tlint  sriid  stock  was  not  worth 
$7.00  pf-r  share,  and  that    it   w;ih  worth  f)nly  $3.50  to  $4.00  per  share,  and  that 


Poems  633 

said  stock  unknown  to  plaintiff  had  at  that  time  a  market  value  of  only 
that  amount. 

Further  answering  this  defendant  states  that  more  than  five  million 
($5,000,000.00)  dollars  is  employed  in  its  said  business,  and  denies  that  any 
representation  was  made  that  the  defendant  was  a  .$5,000,000.00  corporation 
for  the  purpose  of  wrongfully  obtaining  the  confidence  of  plaintiff;  and  this 
defendant  denies  that  persons  who  had  purchased  stock  of  the  C  Corporation 
at  the  sum  of  $7.00  or  $8.00  per  share  ever  lost  money  on  account  of  their 
purchases  through  any  act  or  omission  chargeable  to  this  defendant;  and 
further  shows  that  no  person  who  has  followed  the  advice  and  recommenda- 
tions of  this  defendant  in  reference  to  their  holdings  of  stock  in  said  corpora- 
tion purchased  from  this  defendant  has  lost  money  on  account  of  their  said 
holdings. 

And  further  answering  this  defendant  shows  that  the  C  Corporation  did 
have  contracts  for  war  work,  the  approximate  total  of  which  is  in  the  neigh- 
borhood of  seven  million  ($7,000,000.00)  dollars,  and  denies  tliat  this  defend- 
ant made  any  false  misrepresentations  in  reference  to  Government  contracts 
for  the  purpose  of  inducing  the  plaintiff  or  other  customers  to  believe  that 
the  profits  of  the  C  Corporation  were  greater  than  they  actually  were,  and  this 
defendant  denies  that  the  plaintiff  herein  was  or  has  been  in  any  way  injured 
by  reason  of  the  fact  that  any  statements  were  made  to  the  plaintiff  by  this 
defendant. 

And  for  further  answer  this  defendant  shows  that  it  is  not  informed  save 
by  the  complainant 's  bill  of  complaint  that  the  C  Corporation  was  not  listed 
on  the  New  York  Curb,  and  therefore  neither  admits  nor  denies  the  same,  but 
calls  for  strict  proof  thereof.  This  defendant  denies  that  it  knew  that  the  C 
Corporation  would  not  be  listed  on  the  Curb,  and  denies  that  it  made  any 
representation  that  the  C  Corporation  would  be  listed  on  the  Curb  for  the 
purpose  of  inducing  plaintiff  and  others  to  believe  that  the  stock  could  be 
sold  easily  and  at  an  advance  upon  the  price  to  be  paid  for  the  stock,  and 
this  defendant  denies  that  it  made  any  false  representation  to  the  plaintiff 
or  to  others  before  and  at  the  time  of  the  transaction  set  out  in  plaintiff 's 
petition,  and  denies  that  any  such  statement  was  false  and  known  to  be  false 
both  on  former  occasions  and  at  the  time  it  was  made  to  this  plaintiff. 

This  defendant  admits  that  on  or  about  June  12,  1918  this  defendant  sold 
to  plaintiff  a  second  block  of  stock  of  the  said  C  Corporation  consisting  of 
3,000  shares  of  the  C  Corporation  common  stock  for  which  he  agreed  to  pay 
eight  ($8.00)  dollars  per  share,  making  a  total  purchase  price  of  twenty-four 
thousand  ($24,000.00)  dollars;  that  no  cash  was  paid  to  defendant  on  this 
transaction,  and  this  defendant  denies  that  it  through  its  agents  induced 
plaintiff  to  make  said  last  purchase  by  reason  of  any  false  and  fraudulent 
representations  as  alleged  in  the  petition. 

This  defendant  denies  that  it  warranted  to  the  plaintiff  that  the  stock 
of  the  C  Corporation  would  be  listed  on  the  New  York  Curb  positively  on 
June  27,  1918. 

And  this  defendant  denies  that  the  plaintiff  relied  upon  any  of  the  state- 
ments alleged  in  the  petition  in  reference  to  this  last  mentioned  purchase, 
and  denies  that  any  statements  were  made  by  this  defendant  which  were 
false,  and  that  he  was  induced  to  make  said  second  purchase  of  stock  on 
account   of   representations   of   any   kind   made   by   this  plaintiff,   but    on  the 


634  Appendix 

contrary  shows  that  the  said  purchase  last  mentioned  was  made  solely  in 
accordance  with  the  terms  and  agreements  as  appears  by  the  written  confirma- 
tion agreement  thereof  signed  by  the  plaintiff  ready  to  be  produced  in  court, 
a  copy  of  which  is  hereto  attached  marked  Exhibit  B,  and  made  a  part  hereof. 
This  defendant  further  admits  that  to  secure  payment  of  the  purchase 
price  of  said  second  purchase  of  stock,  the  plaintiff  pjledged  with  the  de- 
fendant as  collateral  for  a  period  of  ninety  days  200  shares  of  Ohio  Cities 
Gas  Company  stock,  and  this  defendant  says  that  the  plaintiff  has  not  as  yet 
paid  the  purchase  price  agreed  upon  for  said  purchase,  and  denies  that  the 
plaintiff  is  entitled  to  the  return  of  the  securities  mentioned  in  the  petition 
heretofore  pledged  to  this  defendant  in  the  said  second  transaction  as  col- 
lateral, and  this  defendant  denies  that  there  is  danger  that  it  will  dispose  of 
the  stocks  held  by  it  as  collateral,  and  denies  that  this  defendant  is  not  able 
to  respond  in  damages  should  this  suit  be  decided  in  favor  of  the  plaintiff, 
and  this  defendant  denies  that  the  plaintiff  is  entitled  to  a  rescission  of  con- 
tracts of  sale  which  govern  the  transactions  in  question,  and  denies  that  the 
plaintiff  is  entitled  to  have  the  obligation  to  pay  the  purchase  price  for  said 
purchase  of  C  Corporation  common  stock  cancelled,  and  that  it  is  entitled  to 
an  injunction  restraining  this  defendant  from  disposing  of  the  stock  de- 
scribed in  the  petition,  and  denies  that  the  plaintiff  is  entitled  to  the  relief 
or  any  part  thereof  as  prayed  in  his  petition. 

Counter-Claims. 

1.  By  way  of  counter-claim  against  the  said  plaintiff  the  defendant  says 
that  on  or  about  the  3rd  day  of  May,  1918,  defendant  sold  to  the  plaintiff 
2,080  shares  of  the  C  Corporation  common  stock  voting  trust  certificates  for 
which  plaintiff  agreed  to  pay  to  defendant  seven  ($7.00)  dollars  per  share, 
making  a  total  purchase  price  of  fourteen  thousand  five  hundred  and  sixty 
($14,560.00)  dollars;  that  the  plaintiff  paid  on  said  transaction  to  the  de- 
fendant the  sum  of  three  thousand  ($3,000)  dollars  and  to  secure  the  payment 
of  the  balance  of  said  purchase  price,  plaintiff  pledged  with  defendant  20 
shares  of  the  preferred  stock  of  the  Grant  Company  and  20  shares  of  the 
common  stock  of  the  Grant  Company;  that  said  collateral  was  pledged  on 
said  balance  of  the  purchase  price  of  said  stock  for  tlie  period  of  120  days 
according  to  a  certain  confirmation  agreement  tlien  and  there  entered  into 
between  the  defendant  and  plaintiff,  a  copy  of  which  is  hereto  attached 
marked  A; 

That  there  is  due  to  the  defendant  from  the  plaintiff  on  said  purchase 
price  the  sum  of  eleven  thousand  five  hundred  and  sixty  ($11,560.00)  dollars, 
no  part  of  which  has  been  paid  by  the  said  plaintiff  to  the  said  defendant; 
that  the  defendant  has  demanded  of  the  plaintiff  that  he  jiay  the  said  sum  of 
eleven  thousand  five  liundred  and  sixty  ($11,560.00)  dollars  upon  said  contract, 
Vjut  the  said  plaintiff  refused  and  Ktill  refuses  to  pay  said  sum  or  any  part 
thereof. 

2.  By  way  of  counter-claim  again.st  the  plaintiff  the  defendant  says  that 
on  or  about  June  12,  1918,  it  sold  to  the  plaintiff  3,000  shares  of  stock  of 
the  C  Corporation  at  a  price  of  $8.00  per  share  aggregating  twenty-four 
thouHund  (.$24,000)  dollars;  that  no  part  of  said  purchase  price  was  paid  to 
the  defendant  at  tlie  time  of  the  transaction;  tliat  at  tlie  time  of  the  said 
Hccond    purcliase    of   stock    plaintiff   to    secure    tlie    jiayment    therefor    pledged 


Forms  635 

■with  the  defendant  for  the  period  of  ninety  days  200  shares  of  Ohio  Cities 
Gas  Company  stock,  which  said  sale  and  pledge  were  made  according  to  a 
certain  confirmation  agreement  then  and  there  entered  into  between  the  de- 
fendant and  plaintiff,  a  copy  of  which  is  hereto  attached  marked  Exhibit  B; 

That  the  plaintiff  has  not  paid  the  defendant  the  said  sum  of  twenty-four 
thousand  ($24,000.00)  dollars  or  any  part  thereof  for  the  purchase  price  of 
said  stock;  that  the  said  sum  of  twenty-four  thousand  ($24,000.00)  dollars 
is  now  due  to  the  defendant  from  the  plaintiff  upon  said  purchase;  that  the 
defendant  has  demanded  of  the  plaintiff  that  he  pay  the  said  sum  of  twenty- 
four  thousand  ($24,000.00)  dollars  on  said  contract,  but  the  plaintiff  has  re- 
fused and  still  refuses  to  pay  said  sum  or  any  part  thereof. 

Wherefore  plaintiff  prays  judgment  against  the  defendant  in  the  sum  of 
thirty-five  thousand  five  hundred  and  sixty  ($.35,560.00)  dollars  with  interest 
on  eleven  thousand  five  hundred  and  sixty  ($11,560.00)  dollars  from  May  3, 
1918,  and  on  twenty-fov  thousand  ($24,000)  dollars  from  June  12,  1918; 
defendant  further  prays  that  the  temporary  injunction  heretofore  granted  be 
vacated,  and  that  an  account  may  be  taken  of  the  stocks  of  the  C  Corpora- 
tion so  sold  to  the  plaintiff  and  set  forth  in  its  said  counter-claims,  and  of 
the  collateral  pledged  to  secure  the  said  sales  as  set  forth  therein,  and  that 
all  of  the  same  may  be  ordered  to  be  sold  and  the  proceeds  applied  to  the 
payment  of  the  indebtedness  of  plaintiff  to  the  defendant;  and  that  execution 
be  awarded  against  the  defendant  for  any  balance  or  deficiency  that  might 
occur  after  said  sale,  and  for  all  other  and  proper  relief. 

G  and  H, 
Attorneys  for  B  Company. 
State   of   Illinois,  [ 

County  of  Cook.  J 

T,  being  first  duly  sworn,  says  that  he  is  the  treasurer  and  agent  of  B 
Company,  defendant  herein,  and  that  the  facts  stated  and  allegations  con- 
tained in  the  foregoing  counter-claims  are  true  as  he  verily  believes. 

T. 

Sworn  to  before  me  and  subscribed  in  my  presence  this  25th  day  of 
November,   1918. 

N.    P., 
Notary  Public,  Cook  County,  Illinois. 

10.     REPLY. 

UNITED  STATES  DISTEICT  COURT, 

Southern  District  of  Ohio, 

Western  Division. 


A, 

vs. 
B   Company, 


Plaintiff, 


No.  160. 
Eeply  and  Answer. 


Defendant. 

Now  comes  plaintiff  herein  and  for  reply  to  the  answer  of  defendant, 
denies  each  and  every  allegation  therein  contained  not  admitted  in  the  pe- 
tition. 

Wherefore  plaintiff  prays  as  in  said  petition. 


636  Appendix 

Answer  to  Counter-Claims. 

Now  comes  plaintiff  and  for  answer  to  the  counter-claims  of  defendant 
admits  that  plaintiff  entered  into  the  contracts  for  the  purchase  of  stocks 
set  out  in  said  counter-claims,  and  that  plaintiff  deposited  with  defendant  as 
collateral  the  moneys,  stocks  and  bonds  set  out  in  said  counter-claims. 

Further  answering,  plaintiff  reiterates  the  matters  and  facts  set  out  in 
the  petition  herein,  and  in  addition  thereto  alleges; 

That  defendant  was  engaged  in  a  general  scheme  to  defraud  this  plaintiff 
and  many  others  unknown  to  plaintiff,  in  maintaining  throughout  the  United 
States  a  large  number  of  branch  ofl&ces,  approximately  to  the  number  of 
twenty-one,  and  that  all  of  said  offices  were  selling  the  common  and  preferred 
stock  of  C  Corporation  and  also  voting  trust  certificates  of  the  common  stock 
of  said  corporation,  on  the  general  plan  of  sale  outlined  in  the  transactions 
described  in  the  petition  herein,  to  wit:  that  said  sale  of  stock  and  voting 
trust  certificates  was  conducted  by  telephone  and  telegram,  and  false  repre- 
sentations were  made  to  the  various  persons  sought  to  be  defrauded  as  to  the 
value  of  said  stocks; 

That  it  was  represented  to  said  various  people  that  the  common  stock 
and  voting  certificates  were  worth  seven  or  eight  dollars  per  share;  that 
said  stock  would  be  listed  on  the  New  York  Curb  within  a  definite  time 
thereafter;  that  the  financial  condition  of  said  C  Corporation  was  in  an 
excellent  condition;  that  defendant  had  a  capital  of  five  million  dollars; 
that  said  C  Corporation  had  Government  contracts  to  the  extent  of  eight  million 
dollars. 

That  said  representations  were  false  and  fraudulent  in  this,  to  wit: 
that  said  C  Corporation  was  from  April  1917  to  October  1918,  on  account 
of  financial  difficulties,  in  the  hands  of  a  creditors'  committee;  that  said 
stock  and  voting  trust  certificates  were  not  worth  seven  or  eight  dollars 
per  share,  but  had  little,  if  any,  value;  that  defendant  did  not  have  any 
capital  stock  whatever,  but  had  a  working  capital,  as  a  common  law  trust, 
very  much  less  than  five  million  dollars;  that  said  C  Corporation  had  no 
Government  contracts  whatever,  but  had  contracts  to  do  work  on  material 
that  was  to  be  used  in  Government  contracts,  in  an  amount  very  much  less 
than  eight  million  dollars;  that  the  stock  of  C  Corporation  was  not  intended 
to  be  listed  on  the  New  York  Curb,  and  that  that  statement  was  made 
for  the  purpose  of  obtaining  the  confidence  of  victims  of  the  fraud  in  order 
to  make  them  believe  that  said  stock  could  be  sold  readily  at  a  high  price; 

That  it  was  part  of  the  fraudulent  scheme  of  defendant  to  make  con- 
tracts for  the  sale  of  larger  amounts  of  stock  than  were  in  existence,  in 
the  expectation  that  the  victims  of  the  fraud,  upon  learning  of  the  real 
value  of  C  Corporation  stock,  would  repudiate  their  contracts,  and  defend- 
ant would  then  ajijiropriatc  the  collateral  put  up  by  said  victims,  and  in 
that  way  defendant  would  realize  fraudulently  large  profits  on  said  opera- 
tion of  its  scheme. 

Wherefore  plaintiff  prays  as  in  his  original  petition,  that  the  court 
rescind  the  contracts  entered  into  by  plaintiff  to  j)urchaso  stock,  and  that 
tho  collateral   dcfioaitfd    with   jdaiiitiff,   wlicllicr   stocks,   bonds   or   moneys,   be 


Forms 


637 


returned   to   plaintiff,   and    for   such    other    and    further   relief   as   is   proper 
in  the  premises. 

D, 

E, 

Attorneys  for  Plaintiff. 

United  States  of  America,"] 
Southern  District  of  Ohio,  ^ss. 
Meigs  County,  J 

On  this  7th  day  of  January,  1919,  personally  appeared  A,  the  above- 
named  plaintiff,  who  made  solemn  oath  that  he  had  read  the  foregoing  reply 
and  answer  to  counter-claims  of  defendant,  subscribed  by  him,  and  knows 
the  contents  thereof,  and  the  same  are  true  to  his  knowledge,  except  as  to 
matters  therein  related  on  information  and  belief,  and  as  to  these  matters 
he  believes  it  to  be  true. 

A. 
Sworn  to  before  me  and  subscribed  in  my  presence  this  7th  day  of  January, 
1919. 

N.  P., 
Notary   Public   in   and  for 
Meigs  County,  Ohio. 


11.     ENTRY  SUGGESTING  DEATH  OF  PLAINTIFF,  AND 
ALLOWING  REVIVOR. 

DISTRICT  COURT  OF  THE  UNITED  STATES, 

Fob  the  Southern  District  of  Ohio, 

Western   Division. 


A, 


B  Company, 


V8. 


Plaintiff, 


Defendant. 


No.  160. 

Entry  Suggesting  Death  of  Plaintiff  and 
Making  E,  Executor,  Party  Plaintiff  and 
Revivor. 


Now  comes  E  and  suggests  to  the  Court  the  death  of  A,  the  plantiff 
herein,  and  that  he  is  the  duly  appointed  and  qualified  executor  of  the  said 
A,  and  moves  the  Court  for  leave  to  become  a  party  of  this  action  and  to 
continue  the  same;  and  the  Court,  finding  the  suggestion  to  be  true,  grants 
said  motion;  and  said  E,  Executor,  is  accordingly  made  party  plaintiff  in 
this  action,  and  the  action  proceeds. 

HoLLisTEE,  Judge. 


638  Appendix 

12.     ENTRY   DISMISSING  PETITION  AND 
COUNTER-CLAIM. 

DISTEICT  COURT  OF  THE  UNITED  STATES, 

For  the  Southern  District  of  Ohio, 

Western   Division. 


A, 

B   Company, 


Plaintiff. 
vs. 

Defendant. 


No.  160. 


Entry. 


It  being  represented  to  the  Court  that  all  matters  of  controversy  herein 
between  plaintiff  and  defendant  have  been  settled;  on  motion  of  both  plaintiff 
and  defendant  the  petition  and  counter-claim  are  both  dismissed  at  the  costs 
of  the  plaintiff,  and  by  consent  of  both  parties  record  is  hereby  waived. 

HOLLISTER,  Judge. 


13.     AFFIDAVIT  USED  "WHEN  ASKING  FOR  A  RESTRAIN- 
ING ORDER  WITHOUT  FIRST  GIVING  NOTICE 
TO  THE  OPPOSITE  PARTY. 

State  of  Ohio,       -| 
County  of  Hamilton./ ^^" 

A,  being  first  duly  sworn,  makes  oath  and  says 

That  he  is  Special  Agent  of  the  B  Company,  plaintiff  herein;  that  said 
B  Company  is  a  corporation  under  the  laws  of  the  State  of  Ohio;  that  he 
has  read  the  foregoing  Bill  of  Complaint  and  is  familiar  with  the  contents 
thereof;  and  that  the  facts  therein  stated  are  within  his  personal  knowledge, 
except  so  far  as  the  same  are  set  out  on  information  and  belief,  and  that  so 
far  as  the  same  are  within  his  personal  knowledge  the  same  are  true,  and 
that  80  far  as  the  same  are  therein  set  forth  on  information  and  belief  he 
believes  the  same  to  be  true  as  the  result  of  diligent  and  faithful  inquiry 
into  the   truth   thereof; 

And  affiant  furtlier  says  that  to  give  notice  for  an  application  for  in- 
junction herein  woulil  tend  to  defeat  the  object  of  such  application,  by 
enabling  the  said  defendant  C  to  place  her  property  beyond  the  reach  of  her 
creditors  and  particularly  of  the  plaintiff  before  such  application  could  be 
heard. 

A- 

Sworn  to  before  me  and  subscribed  in  my  presence,  this  13th  day  of 
February,   1920. 

N.  P., 
Notary   Pubic,  Hamilton   County,   Ohio. 


Forms  G39 

14.     MOTION  FOR  PRELIMINARY  INJUNCTION,  AND  FOR 
AN  ORDER  TO  SHOW  CAUSE. 

IN  THE  UNITED   STATER  DISTRICT  COURT, 

For  the  Soutmekn  Di.stkict  of  Ohio, 

Western    Division. 


A, 


B, 


Plaintiff. 


-In  Equity. 


Defendant. 
Motion  for  Preliminary  Injunction  and  for  an  Order  to  Show  Cause. 

Now  comes  the  plaintiff  in  the  above  entitled  cause,  by  (',  its  solicitor, 
and  moves  this  Honorable  Court  to  grant  a  writ  of  injunction  against  said 
defendants,  their  agents,  attorneys,  clerks,  servants,  workmen,  and  employees 
during  the  pendency  of  this  suit  and  until  the  furtlier  order  of  this  Court, 
conformable  to  the  prayer  of  the  bill  in  said  cause  filed  herewith,  and  in  sup- 
port of  this  motion  plaintiff  files  herewith  a  certified  copy  of  the  decree  and 
injunction  filed  in  the  United  States  Circuit  Court  for  the  Northern  District 
of  West  Virginia  in  the  case  of  D  &  Son  v.  E  &  F,  et  al.,  certified  copies 
of  the  decree  and  injunction  filed  in  the  United  States  Circuit  Court  for  the 
Northern  District  of  West  Virginia  in  the  case  of  A  v.  G  Company  certified 
copy  of  the  mandate  from  the  Court  of  Appeals  of  the  Fourth  Judicial  Cir- 
cuit in  the  ease  of  G  Company,  appellant  v.  A,  appellee,  certified  copy  of  the 
decree  and  injunction  filed  in  the  United  States  District  Court  for  the  Eastern 
District  of  Missouri  in  the  case  of  A  v.  H  Company,  certified  copies  of  the 
decree  and  injunction  in  the  case  of  A  v.  I,  filed  in  the  United  States  District 
Court  for  the  Northern  District  of  West  Virginia,  and  the  affidavits  of  J, 
K,  L,  M  and  N,  together  with  the  exhibits  referred  to  therein. 

Plaintiff  also  asks  that  a  rule  be  entered,  directed  to  the  said  defendants 
B,  to  show  cause,  if  any  they  have,  why  the  preliminary  injunction  should 
not  be  granted  in  accordance  with  this  motion  and  the  prayer  of  the  bOl. 

C, 
Solicitor  &  Counsel  for  Plaintiff. 
Dayton,  Ohio,  June  12th,  1913. 

15.     RULE  TO  SHOW  CAUSE. 

IN  THE  UNITED  STATES  DISTRICT  COURT, 

For  the  Southern  District  of  Ohio, 

Western    Division. 


Plaintiff. 


-In  Equity. 


Defendant. 

EtTLE  TO  Show  Cause. 

The  Plaintiff,   having  filed   a   motion   for   preliminary   injunction   and    an 
order  to  show  cause  why  the  same  should  not  be  granted  and  afladavits  and 


640  Appendix 

other  documents  in  support  thereof,  and  after  due  consideration  had,  it  ia 
ordered  that  the  defendants  in  this  cause,  B  Company,  be  and  appear  in 
the  Court  Eoom  of  this  Court  at  Cincinnati,  Ohio,  at  ten  o'clock  in  the 
forenoon  on  the  5th  day  of  July,  1913,  then  and  there  to  show  cause,  if  any 
they  may  have,  why  a  preliminary  injunction  should  not  issue  in  accordance 
with  the  prayer  of  the  bill  of  complaint. 

It  is  further  ordered  that  a  copy  of  this  order,  together  with  the  motion 
for  preliminary  injunction  and  a  copy  of  the  affidavits  and  documents  filed  in 
support  thereof  be  immediately  served  upon  the  defendants,  B  Company, 
at  ;  that  defendants  file  herein  and  serve  on  plain- 
tiff 's  solicitor,  C  at  his  offices,   ,  Dayton,  Ohio,  on 

or  before  the  23rd  day  of  June,  1913,  all  affidavits  or  other  writings  to  be 
used  in  their  behalf  on  the  return  of  this  order,  and  that  plaintiff  file  herein, 
on  or  before  the  1st  day  of  July,  1913,  all  affidavits  or  other  writings  to 
be  used  in  reply,  copies  of  which  shall  be  served  on  defendants'  solicitor. 

Dated  at  Cincinnati,  Ohio,  this  13th  day  of  June,  1913. 

Signed:  Hollistee, 
United  States  District  Judge. 

16.     ORDER  FOR  PRELIMINARY  INJUNCTION. 

IN  THE  UNITED  STATES  DISTRICT  COURT, 

For  the  Southern  District  of  Ohio, 

Western   Di\dsion. 


A  Company, 


No.  7. 
Plaintiff. 


vs 
B   Company, 


■In  Equity. 
Defendaiit. 

Order  for  Preliminary  Inotunction. 

This  cause  came  on  to  be  heard  before  this  court  on  the  second  day  of 
August,  1913,  on  plaintiff's  motion  for  a  preliminary  injunction,  and  after 
having  heard  and  considered  argument  of  counsel  for  both  parties  and  having 
examined  and  considered  the  affidavits  and  exhibits  of  the  parties  filed  in 
this  cause,  the  court  finds  that  defendants  have  infringed  and  are  infringing 
on  the  patent  of  plaintiff  as  alleged  in  the  Bill  of  Complaint,  and  the  said 
motion  for  a  preliminary  injunction  is  hereby  granted. 

It  is,  therefore,  ordered  that  the  defendants  herein,  B  Company,  and 
each  and  every  one  of  them,  and  their  associates,  attorneys,  clerks,  agents, 
workmen  and  representatives,  and  each  of  them,  during  the  pendency  of  the 
action  and  until  the  further  order  of  this  Court,  be  and  they  are  hereby 
restrained,  forbidden  and  enjoined  from  directly  or  indirectly  in  any  manner 
making,  using,  selling  or  otherwise  disposing  of  and  from  offering,  or  causing 
or  procuring  others  to  make,  use,  sell  or  otherwise  dispose  of  in  any  manner, 
any  wattr  motors  or  apparatus  containing  the  invention  and  improvements 
described  and  claimed  in  United  States  Reissue  letters  patent  No.  12,719, 
dated  November   12,    1907,   issued   to   C  &   Son,  assigned   and   transferred   to 


Forms  641 

A  Company,  the  plaintiff  herein,  desf-ribed  in  the  Bill  of  Complaint  herein, 
and  from  directly  or  indirectly  making,  using,  selling  or  otherwise  disposing 
of  and  from  offering  or  attempting  to  make,  use,  sell  or  otherwise  dispose  of, 
in  any  manner,  defendants'  motors  filed  in  this  case  and  marked  Complain- 
ant's Exhibit,  Infringing  Motor  or  any  motor  substantially  like  it,  and  from 
in  any  manner  directly  or  indirectly  infringing  upon  or  violating  said  letters 
patent  No.  12,719,  or  inducing,  procuring  or  assisting  others  to  infringe  upon 
or  violate  said  letters  patent. 

It  is  further  ordered  that  plaintiff  shall  file  a  bond  in  the  sum  of  Five 
Thousand  Dollars  ($5,000.)  conditioned  to  abide  the  decision  of  this  court 
and  appellate  court,  and  to  pay  all  moneys  and  costs  which  shall  be  adjudged 
against  it  in  case  this  injunction  may  be  dissolved,  said  bond  to  be  filed  forth- 
with and  approved  by  the  Clerk  of  this  Court. 

Dated  at  Cincinnati,  Ohio,  on  this  5th  day  of  August,  1913. 

HOLLISTER,  Judge. 


17.    DECREE. 

IN  THE  UNITED  STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 

Western   Division. 


No.  7. 


A   Company,  "| 

vs.  |-In  Equity. 

B   Company,  J 

Entry. 

This  cause  coming  on  to  be  further  heard  and  it  appearing  to  the  Court 
that  the  parties  have  amicably  adjusted  and  settled  their  controversy,  and 
the  said  parties  consenting,  it  is  ordered,  adjudged  and  decreed  as  follows : 

(1).  That  complainant's  patent  referred  to  in  the  bill  of  complaint  and 
its  title  thereto  are  as  against  the  defendants  good  and  valid  as  averred  in 
the  said  bill  of  complaint. 

(2).  That  the  motors  made  and  sold  by  the  defendants  like  that  marked 
Complainant's  Exhibit,  Infringing  Motor  are  as  against  the  defendants  an  in- 
fringement of  said  patent  as  averred  in  said  bill  of  complaint. 

(3).  That  the  bill  of  complaint  is  hereby  sustained  but  in  view  of  the 
amicable  settlement  and  the  license  agreement  entered  into  between  the  parties 
the  preliminary  injunction  heretofore  granted  is  hereby  dissolved,  the  court 
costs  to  be  paid  equally  by  complainant  and  defendants,  and  the  defendants 
and  those  to  whom  they  sold  said  motors,  to  be  relieved  from  the  payment 
of  royalties,  damages  or  other  compensation  that  might  be  due  to  their  acts 
of  infringement  of  the  patent  as  set  forth  in  said  bill  of  complaint. 

HOLLISTEE,  Judge. 


Wheaton  C.  F.  P.— 41 


642  Appendix 

18.    WRIT  OF  INJUNCTION. 

The  United  States  of  America,") 
Southern  District  of  Ohio,      |-sa. 
Western   Division. 

The  President  op  the  United  States  op  America. 

To  B  and  B  Company,  Greeting: 

Whereas  A  Company,  citizen  of  the  State  of  Ohio,  has  filed  on  the  Chancery 
side  of  the  District  Court  of  the  United  States  for  the  Western  Division  of 
the  Southern  District  of  Ohio,  a  bill  against  B  and  B  Company,  and  has 
obtained  an  allowance  for  a  preliminary  injunction,  as  prayed  for  in  said 
Bill,  from  the  Honorable  Howard  C.  HoUister,  District  Judge, 

NOW,  THEEEFORE,  we,  having  regard  to  the  matters  in  said  Bill  con- 
tained, do  hereby  command  and  strictly  enjoin  you,  the  said  B  and  B  Company 
and  each  and  every  of  you,  and  your  associates,  attorneys,  clerks,  agents, 
workmen  and  representatives,  and  each  of  them,  during  the  pendency  of  this 
action  and  until  the  further  order  of  this  Court,  from  directly  or  indirectly 
in  any  manner  making,  using,  selling  or  otherwise  disposing  of  and  from 
offering,  or  causing  or  procuring  others  to  make,  use,  sell  or  otherwise  dispose 
of  in  any  manner,  any  water  motors  or  apparatus  containing  the  invention  and 
improvements  described  and  claimed  in  United  States  Reissue  letters  patent 
No.  12,719,  dated  November  12th,  1907,  issued  to  D  &  Son,  assigned  and 
transferred  to  A  Company,  described  in  the  Bill  of  Complaint  herein,  and  from 
directly  or  indirectly  making,  using,  selling  or  otherwise  disposing  of,  in 
any  manner,  defendants'  motors  filed  in  this  case  and  marked  Complainant's 
Exhibit,  Infringing  Motor,  or  any  motor  substantially  like  it,  and  from  in 
any  manner  directly  or  indirectly  infringing  upon  or  violating  said  letters 
patent  No.  12,719,  or  inducing,  procuring  or  assisting  others  to  infringe 
upon  or  violate  said  letters  patent.  Which  commands  and  injunction  you 
are  respectively  required  to  observe  and  obey,  until  our  said  District  Court 
shall  make  further  order  in  the  premises. 

Hereof  fail  not,  under  the  penalty  of  the  law  thence  ensuing. 

Witness,  the  Honorable  Howard  C.  Hollister,  District  Judge 
of  the  United  States,  this  5th  day  of  August  A.  D.  1913, 
and  in  the  l.'{8tli  year  of  the  Independence  of  the  United 
States  of  America. 

B.  E.  DiLLEY,  Clerk, 
U.  S.  Dist.  Court,  Southern  District  of  Ohio. 

By  F.  V.  Lamb,  Deputy. 


Forms  643 

19.     WAIVER  OF  SUMMONS,  AND  ENTRY  OF 
APPEARANCE. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 
Western  Division. 
In  Equity. 

No.  6749. 


Waiver  of  Summons  and  Entry  of  Appear- 
ance of  D. 


A,  Receiver  of  B  Company, 

Plaintiff. 
vs. 
C  Company,  et  al., 

Defendants. 

Now  comes  D,  of  Springfield,  Ohio,  one  of  the  defendants  herein,  and 
waives  the  issuance  and  service  of  summons  and  voluntarily  enters  his  ap- 
pearance herein. 

D. 


20.  APPEARANCE. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 

Western  Division. 

A  Company,  "j 

va.  Ino.  189. 

B  and  C.  J 

To  the  Clerk  of  said  Court: 

Please   enter   my   appearance   as    Solicitor  and   of   Counsel   on   behalf    of 
defendants,  B  and  C. 

D, 
E, 
Solicitors  for  B  and  C,  defendants. 

21.    PETITION  FOR  SUBSTITUTION  OF  PLAINTIFF  AND 

FOR  LEAVE  TO  FILE  AMENDED  BILL 

OF  COMPLAINT. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  op  Ohio, 

Western  Division. 

No.  173. 

A  Company, 


Plaintiff. 
vs. 
B   Company, 

Defendant 


In  Equity. 


644  Appendix 

Petition  for  Substitution  of  Plaintiff  and  for  Leave  to  File  Amended 

Bill  op  Complaint. 

To  the  Honorable  Judges  of  the  District  Court  of  the  United  States  for 
the  Southern  District  of  Ohio,  sitting  at  Cincinnati,  GREETING: 
And  now  comes  the  C  Company,  a  corporation  duly  organized  and  exist- 
ing under  the  laws  of  the  State  of  Illinois,  a  citizen  and  inhabitant  of 
the  State  of  Illinois  and  having  its  office  and  principal  place  of  business 
in  the  City  of  Chicago,  County  of  Cook  and  State  of  Illinois,  and  shows  to 
the  court  that  by  an  instrument  in  writing  (a  copy  of  which  is  hereunto 
attached,  and  your  petitioner  stands  ready  to  present  the  original  on  demand) 
dated  December  29,  1919,  your  petitioner  the  C  Company,  acquired  title 
from  the  A  Company,  to  the  letters  patent  No.  841,211  here  sued  upon  (in- 
cluding the  right  to  sue  for  past  infringements)  and  that  your  said  petitioner 
is  now  the  exclusive  owner  of  said  letters  patent  including  the  right  to  sue 
for  past  infringements. 

Wherefore,  your  petitioner  begs  leave  of  court  to  be  substituted  in  lieu 
of  the  A  Company,  as  plaintiff  in  this  case  and  asks  leave  to  file  the  here- 
unto attached  Amended  Bill  of  Complaint. 

C  Company, 
By    D. 
March  5th,  1920.  Their  Attorney, 

22.     STIPULATION   FOR   SUBSTITUTION   OF   PLAINTIFF 
AND  AMENDING  BILL  OF  COMPLAINT. 

UNITED  STATES  DISTRICT   COURT, 

Southern  District  of  Ohio, 

Western  Division. 

No.  173. 


A    Company, 

vs. 
B   Company, 


Plaintiff. 


Defendant. 


-In  Equity. 


Stipulation. 

It  is  stipulated  by  and  between  the  plaintiff  and  defendant,  the  court 
consenting  thereto,  that  the  hereunto  attached  motion  on  behalf  of  the  C 
Company  for  leave  to  be  substituted  for  the  plaintiff,  A  Company,  and  for 
leave  to  file  the  amended  bill  of  complaint  also  attached  hereto,  be  granted 
forthwith,  and  that  the  herewith  presented  Final  Decree  be  entered  in  this 
cause. 

C  Company, 
By    D. 

Their   attorney. 
B  Company, 
By  E  and  F. 

Their   attorneys. 
March  r.th,  1920. 


Forms 


645 


23.     PETITION  FOR  APPOINTMENT  OF  GUARDIAN 
AD  LITEM. 

THE  UNITED  STATES  DISTRICT  COURT, 
For.  the  Southern  District  of  Ohio, 
'  Western  Division. 

In  Equity. 

No.  76. 


A  and  B, 


C  et  al. 


Plaintiffs. 


Defendants. 


Petition  for  Appointment  of  a  Guardian  Ad 
Litem  on   the  Petition  of  the  Plaintiffs. 


To  the  Honorable  The  Judges  of  the  District  Court  of  the  United  States  of 

the  Southern  District  and  Western  Division: 

Now  Comes  D  and  represents  to  the  Court  that  the  said  C,  defendant  in 
the  Bill  filed  herein  by  A  and  B  against  C  et  al.,  to  foreclose  a  mortgage 
alleged  to  have  been  executed  by  said  C  and  praying  for  the  sale  of  the 
mortgaged  premises,  is  a  drunkard  and  under  guardianship. 

He  further  represents  that  the  said  C  was,  on  or  about  the  26th  day  of 
August,  1914,  by  the  Court  of  Common  Pleas  of  Butler  County,  Ohio,  on  an 
appeal  from  the  Probate  Court  of  said  Butler  County,  duly  adjudged  a 
drunkard  by  said  Common  Pleas  Court  and  incapable  of  managing,  con- 
trolling and  taking  care  of  his  said  property  and  on  said  date  the  said  D, 
this  petitioner,  was  duly  appointed  and  qualified  as  the  guardian  of  the 
person  and  the  estate  of  the  said  C  and  is  now  acting  as  such.  That  by 
reason  of  said  guardianship  the  said  C  is  incapable  of  defending  in  this 
action. 

That  on  the  13th  day  of  September,  1915,  process  in  this  suit  was  duly 
served  on  said  C  requiring  him  to  appear  and  answer  the  said  Bill,  return- 
able according  to  law.  That  no  guardian  ad  litem  has  yet  been  appointed 
of  such  defendant  or  applied  for  by  him  or  by  any  person  on  his  behalf  to 
the  knowledge  of  your  petitioner. 

Your  petitioner  therefore  prays  that  D,  the  legal  guardian  of  the  said  C, 
may  be  appointed  guardian  ad  litem  of  such  defendant  to  appear  and  defend 
this  suit  on  his  behalf. 

D, 
By    E, 


F. 


Solicitors. 


646  Appendix 

24.     ORDER  GRANTING  APPOINTMENT  OF  GUARDIAN 

AD  LITEM. 

UNITED  STATES  DISTEICT  COURT, 

Southern  District  of  Ohio, 
Western  Division. 


A  and  B, 


Plaintiffs, 


In  Equity  No.  76. 
Entry. 


vs. 
C  et  al., 

Defendants. 

This  day  this  cause  came  on  to  be  heard  upon  the  petition  of  D  for  the 
appointment  of  a  guardian  ad  litem  for  the  defendant,  C,  herein,  and  the 
Court,  being  fully  advised  in  the  premises,  does  find  that  the  allegations  of 
said  application  are  true  and  that  a  guardian  ad  litem  should  be  appointed 
for  the  defendant,  C. 

It  is  therefore  considered  and  adjudged  by  the  Court  that  D  be  and 
hereby  is  appointed  guardian  ad  litem  for  the  said  C,  defendant  herein. 

HOLLISTEB,  Judge. 


25.    NOTICE  OF  MOTION. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 

Western  Division. 


A  Company, 


Plaintiff, 


No.  59. 
Notice  of  Motion. 


vs. 
B   Company  and   C, 

Defendants. 

D,  Esq. 

Sir:  Please  take  notice  that  on  the  1st  day  of  April,  1915,  at  the  call 
of  the  motion  for  a  preliminary  injunction  in  this  cause  we  shall  present  the 
motion  to  dismiss  the  Bill  of  Complaint,  a  copy  of  which  is  attached  hereto, 
and  shall  ask  for  an  immediate  hearing  thereof. 

Respectfully, 
E. 
F. 

Copy  of  foregoing  notice  and  of  motion  to  dismiss  acknowledged  this  25th 
day  of  March,  1915. 

Attorney  for  Plaintiff. 


Forms  647 

26.    MOTION  TO  DISMISS  BILL  OP  COMPLAINT.^ 

UNITED   STATES   DISTRICT   COURT, 

Southern  District  of  Ohio, 

Western  Division, 


A  Company, 


Plaintiff, 


No.  59. 
A  Special  Appearance  on  Behalf  of  C  and 
Motion  to  Dismiss  the  Bill  of  Complaint 
as  to  the  Party  C. 


T8. 

B  Company  and  C, 

Defendants. 

And  now  comes  C  by  his  attorneys,  E  and  F,  appearing  specially  for  the 
purpose  of  this  motion  and  for  no  other  purpose,  and  moves  this  Honorable 
Court  that  the  Bill  of  Complaint,  in  so  far  as  the  said  C  is  concerned,  shall 
be  dismissed  and  for  cause  therefor  showeth: 

(1)  No  service  has  been  made  or  had  in  this  cause  upon  the  said  C 

(2)  The  complaint  shows  that  the  said  C  is  not  an  inhabitant  of  this 
district,  nor  has  a  regular  and  established  place  of  business  in  this  district 
and  has  committed  infringing  acts  in  this  district. 

Wherefore  this  Court  has  no  jurisdiction  of  the  pretended  cause  of  action 
herein  stated  against  the  said  C. 

The  complaint,  therefore,  should  be  dismissed  with  costs  to  the  said  C. 

C, 
By  E  and  F, 

Attorneys. 

The  foregoing  motion  is  filed  in  good  faith;  is,  in  our  judgment,  sufficient 
in  law,  and  is  without  any  intention  of  causing  delay. 

E. 
F, 


27.    MOTION  TO  DISMISS  BILL  OF  COMPI<AINT. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  op  Ohio, 

Western  Division. 


A, 


No.  129— In  Equity. 
Complai-nant , 


Motion. 


VB. 

B   Company  et  al., 

Defendants. 

And  now  comes  the  defendant,  B  Company,  and  says  that  this  case  does 
not  really  and  substantially  involve  a  dispute  or  controversy  properly  in  the 
jurisdiction  of  this  court,  in  that  the  value  of  the  subject  matter  as  alleged 
is  not  truly  stated  or  alleged  in  good  faith.  And  this  defendant  says  the 
value  of  the  subject  matter  involved  in  this  suit  does  not  exceed  the  sum 
of  three  thousand  dollars  exclusive  of  interest  and  costs.     All  of  which  it 


648  Appendix 

avers  to  be  true  and  sets  up  the  same  in  bar  of  the  complaint  in  the  bill  and 
prays  the  Court  to  dismiss  the  said  bill  and  give  it  judgment  for  its  costs. 

C  and  D, 
Attorneys  for  B  Company. 

We  hereby  acknowledge  receipt  of  the  within  motion. 

E  and  F, 

of   Counsel   for   A. 
Dated  at  Dayton,  Ohio,  this  22nd  day  of  May,  1917. 


28.     MOTION  TO  QUASH  AND  DISMISS  ANCILLARY  BILL. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 

Western  Division. 

A,  Receiver  of  the  B  Company, 
an  Ohio  Corporation,  a  Citi- 
zen of  the  State  of  Ohio, 

Plaintiff, 
vs. 
The  B  Company,  an  Ohio  Cor 
poration,   et  al.. 

Defendants 


No.  2. 


Motion  to  Quash  and  Dismiss  Ancillary  Bill. 

Now  come  C,  D,  et  al.,  who  have  been  severally  served  with  a  subpoena  in 
chancery,  in  the  above  entitled  action,  and  by  protestation  not  confessing 
or  acknowledging  any  part  or  all  of  the  matters  in  ancillary  bill  in  chancery 
herein  mentioned  to  be  true,  in  such  manner  and  form  as  the  same  are 
therein  set  forth  and  alleged,  and  expressly  refraining  and  refusing  to  enter 
their  respective  appearances  herein  for  any  other  purpose  than  the  purpose 
of  this  their  several  motion,  severally  move  the  Court  to  quash  and  set 
aside  the  said  service  of  subpoena  upon  each  of  them  severally  and  for  the 
dismissal  of  the  said  bill  for  the  following  reasons: 

First.     That  there  is  a  misjoinder  of  parties  defendant  in  the  said  Bill. 
^  Second.     There  is  a  non-joinder  of  parties  who  should  be  made  defendants 
in  said  Bill,  if  properly  maintainable  herein. 

Third.  That  said  Bill  docs  not  state  facts  sufficient  to  constitute  a  valid 
cause  of  action  in  equity  against  these  several  defendants. 

E, 
Solicitor  for  the  Aforesaid  Several  Defendants. 


Forms  649 

29.    MOTION  FOR  BILL  OF  PARTICULARS. 

UNITED   STATES  DISTRICT   COURT, 

Southern  District  of  Ohio, 

Western  Division. 


A, 

Complcuinant, 
vs. 
The    B    Company    and    The    C 
Company, 

Defendants. 


In  Equity — No.  8. 


And  now  comes  the  defendant,  The  B  Company,  and  moves  this  Court 
for  an  order  requiring  the  complainant  to  make  a  further  and  better  state- 
ment of  the  nature  of  the  claim  and  further  and  better  particulars  of  its 
cause  of  action  in  accordance  with  Rule  20  of  the  Rules  of  Practice  for  Courts 
of  Equity  promulgated  by  the  Supreme  Court  of  the  United  States  on  Novem- 
ber 4,  1912;  and  it  prays  for  the  entry  of  the  annexed  form  of  order,  or  for 
such  other  and  further  relief  as  may  be  deemed  equitable  in  the  premises. 

The  B  Company, 
By  C,  D,  E  and  F, 

Its  Solicitors. 
Dated,  Dayton,  Ohio,  September  29,  1913. 


30.     ORDER  TO  COMPLAINANT,  TO  FILE  BILL  OF 
PARTICULARS. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 

Western  Division. 

A, 

Complainant, 
vs. 
The    B    Company    and    the    C 
Company, 

Defendants. 


In  Equity — No.  8. 


This  cause  having  come  on  to  be  heard  at  this  term  upon  the  motion  of 
the  defendant,  the  B  Company,  for  bill  of  particulars,  and  the  same  having 
been  taken  under  advisement,  it  is 

Ordered  that  the  complainant,  within  twenty  days  from  the  date  hereof, 
file  with  the  clerk  of  this  Court  and  serve  upon  the  solicitors  for  the  defend- 
ant, the  B  Company,  a  bill  of  particulars  as  follows:  (a)  Specifying  and 
identifying  each  of  the  cash  registers  of  the  defendant  which  is  alleged  to  be 
an  infringement  of  the  patents  in  suit,  (b)  which  of  the  patents  in  suit  is 
alleged  to  be  infringed  by  each  of  such  cash  registers,  and  (c)  which  of  the 
claims  of  each  of  the  patents  in  suit  is  alleged  to  be  infringed  by  each  of  the 
cash  registers  so  specified;   and  it  is  further 


650  Appendix 

Ordered  that  the  defendant,  the  B  Company,  have  forty-five  days  from  and 
after  the  filing  and  service  of  said  bill  of  particulars  upon  its  solicitors  within 
which  to  prepare  and  file  its  answer  to  the  bill  of  complaint  herein. 

Dated,  October,   ,  1913. 

HOLLiSTER,  U.  S.  District  Judge. 

31.     BILL  OF  PARTICULARS. 

UNITED   STATES  DISTRICT   COURT, 

Southern  District  of  Ohio, 

Western  Division. 

A, 

Plaintiff, 
vg. 
The    B    Company    and    The    C 
Company, 

Defendants.} 


In  Equity — No.  8. 


Bill  of  Paeticulaes. 
Now  comes  the  plaintiff,  and  not  waiving  or  intending  to  waive  or  abandon 
either  or  any  of  the  claims  set  forth  in  the  several  patents  owned  by  her  and 
mentioned  and  described  in  the  bill  of  complaint  heretofore  filed  herein, 
submits  the  following  particulars  in  regard  to  her  allegation  of  infringement 
and  the  claims  relied  upon,  together  with  the  type  of  machines  of  the  de- 
fendant, The  B  Company,  showing  such  infringement;  it  is  not  the  intention, 
however,  of  the  plaintiff  to  waive  her  right  to  claim  infringement  by  other 
machines  of  different  types  owned,  manufactured,  sold  and  used  by  the  de- 
fendant. The  B  Company,  of  which  the  plaintiff  now  has  no  definite  knowledge. 

1.  That  the  type  of  machine  classified  by  The  B  Company  as  the  300  line 
type  with  autograph  infringes  claims  15  and  42  of  the  United  States  patent 
810,376. 

2.  The  300  line  type  with  printer  attached  infringes  claims  30,  31,  41, 
42,  45,  62  and  63  of  United  States  patent  No.  810,376. 

3.  Etc. 

D,  E  and  F, 
Cincinnati,  Ohio,  Nov.  22,  1913.  Attorneys  for  A. 

32.     MOTION   TO   PERMIT   INTERVENTION. 

UNITED  STATES  DISTRICT  COURT, 
Southern  District  of  Ohio, 
Western  Division. 
The  A  Company,  a  Corporation, 
and  B,  its  Trustee  in  Bank- 
ruptcy, 

Plaintiffs, 
vs. 
Tho  C  Company,  a  corporation, 
and  Tho  D  Company,  a  cor- 
poration, 

Defendants. 


No.    61— Equity. 
-    Motion  to  Permit  The  E  Company  to  Inter- 
vene. 


Forms  651 

Now  comes  the  E  Company,  a  corporation  of  the  State  of  Ohio,  and  states 
that  it  recovered  a  judgment  against  the  C  Company  on  the  26th  day  of 
October,  1915,  in  the  Superior  Court  of  Cincinnati  in  case  No.  56256,  which 
is  wholly  unsatisfied  and  has  never  been  reversed. 

Now  the  said  E  Company  moves  the  Court  to  permit  it  to  intervene  in 
this  case  and  set  up  its  rights  on  said  judgment  on  the  ground  that  this 
Court  having  rightful  jurisdiction  in  this  case  and  having  first  assumed  juris- 
diction and  also  that  the  jurisdiction  involves  tlie  title  and  disposition  of 
certain  property  formerly  belonging  to  the  C  Company  which  was  sold  and 
bought  in.  by  a  bondholders'  committee  and  thereafter  turned  over  to  the  D 
Company;  and  the  issues  in  this  case  involve  the  action  and  judgment  of 
this  Court  upon  the  status  of  said  property  and  upon  the  question  of  the 
final  disposition  of  said  property  in  the  ease  complainant  herein  should  pre- 
vail, and  this  moving  defendant  having  claims  of  the  same  character  as  the 
complainant's  claim  and  being  entitled  to  the  same  rights;  this  intervention 
is  merely  ancillary  to  the  main  case  already  pending  in  this  Court. 

S, 
Solicitor   for   E   Company. 

33.  ORDER  GRANTING  LEAVE  TO  FILE  INTERVENING 

PETITION. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 

Western  Division. 

The  A  Company  et  al.,  "| 

vs.  I-  Equity — ^No.   61. 

The  B   Company.  J 

Upon  application  of  the  E  Company,  and  by  consent  of  the  defendants, 
leave  is  hereby  granted  the  E  Company  to  file  an  intervening  petition  herein, 
and  the  same  is  filed  forthwith. 

HOLLISTER,  U.  S.  District  Judge  S.  D.  O. 

34.  MOTION  FOR  LEAVE  TO  FILE  INTERROGATORIES. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 

Western  Division. 

No.  11. 
The   A   Company, 


Complainant, 
vs. 

The  B  Company, 

Defendant. 


Motion. 


Now  comes  the  defendant  and  represents  to  the  Court  that  the  testimony 
of  C,  residing  at  Baltimore,  Md.,  and  of  D,  residing  at  Atlanta,  Ga.,  is  of 
essential  importance  to  the  defendant  in  this  cause,  and  that  it  is  impossible 
to  procure  their  attendance  at  the  hearing  of  the  cause  now  set  for  July  of 


652  Appendix 

the  present  year,  and  moves  the  Court  for  an  order  authorizing  the  defendant 
by  its  counsel  to  take  the  depositions  of  said  persons  as  witnesses  at  Atlanta, 
Georgia,  or  elsewhere,  at  such  time  as  may  be  practicable  during  the  month 
of  June,  1914,  upon  due  notice  of  time  and  place  to  complainant's  counsel; 
the  same  to  be  taken  before  any  notary  public  or  other  officer  duly  authorized 
thereto. 

The   B   Company, 

By  E  and  P, 

Attorneys. 

35.  ORDER  GRANTING  LEAVE  TO  FILE 
INTERROGATORIES. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 

Western  Division. 


The  A  Company, 


No.  11. 

Complainant, 

Entry. 


vs. 
The   B  Company, 

Defendant. 

This  cause  coming  on  to  be  heard  upon  the  motion  of  defendant  to  be 
authorized  to  take  the  depositions  of  C  and  D,  both  non-residents  of  this  dis- 
trij^t  and  state,  and  it  being  made  to  appear  that  the  testimony  of  said  parties 
is  important  to  the  defense,  and  that  conditions  have  arisen  making  the  taking 
of  their  depositions  necessary,  authority  is  hereby  given  defendant  to  take  the 
said  depositions  prior  to  June  20th  prox.,  before  any  notary  public  or  other 
duly  authorized  officer,  upon  due  notice  to  the  complainant,  the  same  to  be 
filed  prior  to  the  hearing  of  the  cause. 

HOLLISTER,   Judge. 

36.    MOTION  TO  TRANSFER  ACTION  FROM  THE  EQUITY 
SIDE  TO  THE  LAW  SIDE  OF  THE  COURT. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  or  Ohio, 

Western  Division. 

A,  ] 

Plaintiff,  No.  171. 

vs.  .    Motion  to  Transfer  Action  from  the  Equity 

B  Mfg.  Company,  Side  to  the  Law  Side  of  the  Court. 

Defendant. 

Plaintiff  moves  Court  that  the  above  action  be  transferred  from  the  equity 
Bid«  of  the  Court  to  tlio  law  side,  for  the  reason  that  it  was  filed  in  equity 
through   error. 

C  and   D, 

Attorneys  for  Plaintiff. 


Forms 


653 


37.     ENTRY  TRANSFERRING  ACTION  FROM  THE  EQUITY 
SIDE  TO  THE  LAW  SIDE  OF  THE  COURT. 


A, 


B  Mfg.  Company, 


Plaintiff, 


Defendant. 


No.  171. 
Entry  Transferring  Action  from  the  Equity 
Side  to  the  Law  Side  of  the  Court. 


It  appearing  to  the  Court  that  the  above  action  was  through  error,  brought 
in  equity,  it  is  ordered  that  said  action  be  transferred  to  the  law  side  of 
this  Court  under  the  provisions  and  requirements  of  Equity  Rule  No.  22. 

HoLLisTER,  Judge. 


38.    TRIAL  NOTICE. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 

Western  Division. 

^'  vs.  1  ^°-  ^^• 

■g  j  Notice. 

To  C,  Attorney  for  B: 

Please  take  notice  that  A  will  apply  to  the  Clerk  of  said  Court,  to  have 
the  above  case  set  for  trial  at  the  October  Term  thereof,  A.  D.  1917. 

Attorney  for  A. 

Service  of  the  above  notice  is  hereby  acknowledged  this   day  of 

,  191... 

Attorney  for  


39.     STIPULATION  TO  DROP  CASE  FROM  TRIAL 
CALENDAR. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  op  Ohio, 

Western  Division. 


The  A  Company  and  B, 

vs. 
The    C    Company. 


In  Equity. 
No.  18. 


Stipulation. 

It  is  stipulated  by  and  between  counsel  that  in  view  of  the  fact  that  the 
negotiations  have  been  and  still  are  pending  between  the  parties  for  the  settle- 
ment of  this  suit,  it  is  to  the  mutual  interest  of  the  parties  to  drop  the  case 


654  Appendix 

from   the  trial   calendar   under   Equity   "Rule   57,   and   that   the   accompanying 
order  be  entered. 

Deposit   has   been  made   by   complainant   ample   to   cover  any   costs   here- 
tofore incurred. 

Respectfully  submitted, 

D, 
Counsel  for  Complainant. 
E, 
Counsel  for  Defendant. 


40.     WAIVER  OF  TRIAL  JURY. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 

Western  Division. 

A,    Trustee    in    Bankruptcy    of " 
B,  doing  business  under  the 
firm  name  of  B  and  C, 

Plaintiff, 
vs. 
D,  as  County  Auditor  of  Law- 
rence County,  Ohio,  and  the 
E    Bank,    a    corporation    of 
Ironton,  Ohio, 

Defendants. 

Waivee. 

We,  the  attorneys  for  the  respective  parties,  hereby  waive,  in  writing,  the 
trial  to  a  jury  of  this  cause,  and  agree  to  submit  the  same  to  the  Court 
without  the  intervention  of  the  jury. 

F,    and   G, 
Attorneys    for    defendant,    the    E    Bank    of 
Ironton,  Ohio,  and  for  defendant  D  as 
Auditor  of  Lawrence  County,  Ohio. 
H   and  I, 
Attorneys  for  A,  Trustee  in  Bankruptcy  of 
B,  doing  business  under  the  firm  name 
of  B  and  C. 


41.     SUBPOENA  DUCES  TECUM. 

The  United  States  of  America, 

Southern  District  of  Ohio, 

Western   Division. 

TiiK  I'kksii)p:nt  of  the  Unitkd  States  of  America. 
To   A. — Oroeting: 

We  recommend  and  Htrli'tly  enjoin  you  and  eax-h  of  you,  that  laying  asido 
all  manner  of  huHineaa  and  excuses  whatsoever,  yon  and  each  of  you  be  and 


Forms  655 

appear  in  your  proper  person  before  the  United  States  District  Court,  within 
arid  for  the  district  and  division  aforesaid,  at  the  court  rooms,  in  the  City  of 
Dayton,  Ohio,  on  Saturday,  the  28th  day  of  July,  1917,  at  ten  o'clock  A.  M., 
and  also  that  you  bring  with  you  and  produce  at  the  time  and  place  aforesaid, 
copies  of  letter-heading,  literature  and  advertising  matter  used  by  the  defend- 
ant, A  Company,  between  January  1st,  1888,  and  January  1st,  1913;  also 
copies  of  all  advertising  matter,  literature  and  letter-heading  employed  by  the 
defendant,  A  Company,  since  September,  1916.  Also  all  specimens  of  name- 
plates  or  other  marks  of  identification  employed  by  the  defendant,  A  Com- 
pany, between  January  1st,  1888,  and  January  1st,  1913. 

Then  and  there  to  testify  on  behalf  of  complainant  what  you  and  each 
of  you  may  know,  in  a  certain  action  pending  in  said  Court,  wherein  B,  etc., 
are  plaintiffs  and  A  Company  defendants. 

And  this  you  do  under  the  penalty  of  the  law. 

Witness  the  Honorable  Howard  C.  Hollister,  Judge  of  the 
District  Court  of  the  United  States,  this  28th  day  of  July, 
A.  D.  1917,  and  in  the  142nd  year  of  the  Independence  of 
the  United  States  of  America. 

Attest:     B.    E.   Dilley,  Clerk. 
By  F.  V.  Lamb,  Deputy. 


42.    APPLICATION  FOR  WRIT  OF  ASSISTANCE. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 

Western  Division. 


A  et  al.. 


No.   164. 
Complainants, 


Defendant. 

Now  come  the  complainants  and  represent  to  the  court  that  the  receiver, 
C,  Esquire,  heretofore  appointed  herein,  has  made  demand  upon  the  defendant 
for  delivery  to  him  as  such  receiver  of  money,  check  books,  bank  books,  per- 
sonal property,  certificates  of  stock  of  the  D  Real  Estate  Exchange  and  the 
B  Company,  and  deeds  for  real  estate  in  Warren  County,  Ohio,  and  in  the 
State  of  Oklahoma,  the  foregoing  being  property  acquired  in  whole  or  in. 
part  by  use  of  moneys  derived  by  the  said  B  from  the  complainants  herein 
and  others  in  like  case  by  the  frauds  set  forth  in  the  bill  of  complaint  herein, 
and  that  the  said  B  has  failed  and  refused  to  deliver  any  portion  of  said 
property,  claiming  that  he  has  no  property  resulting  from  the  use  of  such 
moneys.  Complainants  aver  that  they  do  not  believe  that  the  denial  of  said 
defendant  is  true,  and  therefore  make  this  application  for  a  writ  of  assistance 
or  other  appropriate  inquiry  or  proceeding  for  determination  whether  the 
said  B  is  possessed  of  such  property  or  has  control  of  the  same  which  he  could 
turn  over  to  the  receiver  in  this  case,  and  further  pray  that  an  order  be  made 
upon  the  said  B  to  turn  over  to  the  receiver  in  this  case  all  property  to  which 


656 


Appendix 


the  appointment  of  receiver  is  applicable,  and  that  failing  to  do  so  he  be  pun- 
ished for  contempt. 

E,  F,   G  and  H, 

Solicitors  for  Complainanto. 

43.     ORDER  OVERRULING  MOTION  FOR  WRIT  OP 
ASSISTANCE. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 

Western  Division. 


A  et  al., 


Complainants, 


Defendant. 


In  Equity  No.   164. 

Entry   Overruling    Motion  and   Application 
of  Complainants. 


This  cause  came  on  to  be  heard  upon  the  application  of  complainants  for 
a  writ  of  assistance  or  other  appropriate  inquiry  for  determining  whether  de- 
fendant B  is  possessed  of  certain  properties  referred  to  and  set  out  in  said 
application,  or  has  control  of  same,  which  he  could  turn  over  to  the  receiver 
heretofore  appointed  herein,  and  was  argued  and  submitted  to  the  Court. 

Whereupon  the  Court,  after  due  consideration  thereof,  does  overrule  said 
motion  and  application,  to  all  of  which  complainants  by  their  counsel  except. 

HoLLisTER,  Judge. 


44.    MOTION  FOR  RECEIVER  AND  AN  INJUNCTION. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 

Western  Division. 


A, 


Plaintiff, 


No.   .38. 

Motion    for  Receiver  and   an  Injunction. 


The  B  Company,  a  corporation 
incorporated  and  organizod 
under  the  laws  of  Ohio,  C, 
D,  E,  F,  et  al., 

Defendants. 

Now  comes  the  plaintiff,  A,  and  respectfully  moves  tne  court  for  the 
;ippointmcnt  of  a  receiver  and  an  injunction  as  prayed  for  in  the  petition 
pendente  lite. 

G  and  U, 
Attorneys   for  PlaintifT. 


Forms 


657 


45.     ORDER  APPOINTING  RECEIVER. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 

Western  Division. 


Plaintiff, 

vs. 
The  B  Company,  a  corporation]    No.  38. 

incorporated    and    organized      Entry    Appointing    Receiver, 
under  the  laws  of  Ohio,  C, 
D,  E  and  F,  et  al.. 

Defendants. 

This  cause  came  on  this  day  to  be  heard  on  the  motion  of  the  plaintiff 
and  certain  of  the  defendants  for  the  appointment  of  a  receiver,  and  the  Court 
finds  under  the  peculiar  circumstances  of  the  case  that  justice  to  the  parties 
requires  the  services  of  an  indifferent  person  to  preserve  the  property  of  the 
above  named  corporation  until  steps  for  its  reorganization  can  be  taken  by 
its  actual  owners. 

It  is  therefore  ordered  that  G  be  and  he  hereby  is  appointed  such  tem- 
porary receiver,  until  further  order  of  the  Court,  of  all  the  property,  real  and 
personal,  equitable  interests  and  things  in  action  belonging  to  the  said  B 
Company  wheresoever  the  same  may  be  found  or  situate,  and  the  said  receiver 
upon  being  duly  qualified  according  to  law  is  ordered  to  take  charge  of  all 
and  singular  the  property,  books,  accounts  and  papers  of  the  said  company 
and  to  have  exclusive  charge  of  the  business  and  affairs  thereof  and  for  the 
purpose  of  maintaining  the  business  as  a  going  concern  to  continue  the  opera- 
tion of  the  business  of  the  said  company  for  sixty  (60)  days  from  the  date 
of  this  order.  All  parties  hereto  and  all  other  persons  having  any  of  the 
said  property  in  their  possession  or  under  their  control  are  hereby  ordered 
to  deliver  the  same,  and  all  persons  owing  any  such  money  belonging  to  the 
said  corporation  are  hereby  directed  to  pay  over  the  same  to  the  said  G  as 
such  receiver. 

The  said  receiver  is  hereby  authorized  to  draw  checks  against  the  funds 
of  the  corporation;  to  collect  by  suit  or  otherwise  all  moneys  due  or  to  become 
due  the  said  corporation;  to  hire  and  discharge  help  and  employes  of  all 
kinds  necessary  in  the  carrying  on  of  the  said  business;  to  buy  material  or 
personal  property  of  any  sort  necessary  in  the  conduct  of  the  said  business; 
to  pay  from  the  funds  of  the  said  corporation  all  expenses  of  every  sort  neces- 
sary in  the  conduct  of  the  said  business;  to  pay  from  the  funds  of  the  said 
corporation  all  and  any  of  the  debts  of  the  said  business  now  due  or  to  become 
due ;  to  obtain  an  extension  of  time  for  the  payment  of  said  debts  if  advisable 
and  sign  any  renewal  notes  or  obligations  necessary  therefor;  to  bring,  defend 
and  compromise  all  suits  at  law  or  in  equity  in  which  the  said  corporation 
is  now  or  may  become  a  party;  and  in  every  other  way  do  everything  that 
is  necessary  in  the  conduct  of  the  said  business  as  fully  and  completely  as 
the  said  corporation  could  do  through  its  board  of  directors  and  officers. 

It  is  further  ordered  that  before  entering  upon  his  duties  as  such  receiver, 
said  G  execute  a  bond  to  the  B  Company  to  the  satisfaction  of  the  Court 
Wheaton  C.  F.  P.— 42 


658  Appendix 

herein  in  the  sum  of  ten  thousand   ($10,000.00)    dollars  conditioned  for  the 
faithful  and  honest  performance  of  his  duties. 

In  making  this  order  the  Court  does  not  in  any  way  pass  upon  the  legal 
right  of  the  plaintiff  or  any  party  hereto  to  have  a  permanent  receiver  ap- 
pointed or  the  propriety  of  appointing  a  receiver  in  the  premises,  and  the 
Court  hereby  specifically  reserves  such  questions  for  future  determination, 
this  appointment  being  made  merely  for  the  preservation  of  the  rights  of  the 
parties  and  the  property  of  the  B  Company.  And  the  Court  further  reserves 
the  right  to  make  such  further  orders  from  time  to  time  as  may  be  necessary 
in  the  premises. 

And  now  came  said  G  and  presented  his  bond  with  the  H  Surety  Company 
as  surety,  which  bond  the  Court  hereby   approves. 

HOLLISTEE,  Judge. 

46.  ORDER  TO  TAKE  PRO  CONFESSO. 

UNITED  STATES  DISTRICT  COURT, 
SouTHEEN  District  op  Ohio, 


A, 


Complainant, 


VB. 

B   Mfg.   Company, 

Defendant. 


■   In  Equity — No.  42. 


Oedeb  to  Take  Peo  Confesso. 

It  appearing  to  the  Court  that  the  answer  to  the  bill  in  equity  in  the 
above-entitled  cause  was  filed  in  this  Court  on  the  25th  day  of  August,  1914; 
and  it  appearing  in  the  answer  that  a  set-off  or  counterclaim  was  incorporated 
in  said  answer;  and  it  appearing  that  no  reply  under  the  rules  has  been  filed 
within  ten  days  from  the  filing  of  the  answer  or  since  then. 

Therefore,  on  motion  of  C,  solicitor  for  the  defendant,  it  is  ordered  and 
decreed  that  so  much  of  the  answer  as  sets  forth  said  counterclaim  or  set-off 
be  taken  pro  confesso  as  to  said  complainant. 

HOLLiSTER,  U.  S.  District  Judge. 
September  19,  1914. 

47.  MOTION  TO  VACATE  ORDER  PRO  CONFESSO. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 

Western  Division. 


Plaintiff, 


In   Equity — No.   42. 


A, 

vs. 
B   Mfg.   Company, 

Defnulant. 

Anri  now  romoH  A,  the  j)l;iintifr  in  tlio  above  entitled  cause,  by  his  counsel, 
and    inovoH    thin    honorable    Court   to   Bct   aside    the   "order   to   take    bill    pro 


Forms  659 

confesso"  entered  herein  on  or  about  the  19th  day  of  September,  1914,  and 
that  an  order  be  entered  that  the  plaintiff  may  have  until  October  15,  1914, 
in  which  to  file  his  answer  to  the  sct-oflf  or  counterclaim  incorporated  in  the 
defendant's  answer. 

In  support  of  this  motion  there  is  filed  herewith  an  affidavit  of  C,  counsel 
for  plaintiff. 

C, 
Counsel  for  Plaintiff. 
Dated,  New  York,  October  2,  1914. 

48.     ENTRY  SETTING  ASIDE  ORDER  TO  TAKE  BILL 
PRO  CONFESSO. 

UNITED  STATES  DISTRICT  COURT, 
Southern  District  of  Ohio, 

A, 

Plaintilf, 

vs. 
B  Mfg.  Company, 

Defendant. 

This  cause  coming  on  this  day  to  be  heard  on  the  motion  of  the  plaintiff 
to  set  aside  the  "order  to  take  bill  pro  confesso"  entered  herein  on  the  19th 
day  of  September,  1914,  and  on  the  evidence  and  on  the  argument  of  counsel, 
and  the  Court  being  fully  advised,  on  consideration  thereof,  finds  said  motion 
to  be  well  taken  and  grants  the  same. 

It  is  therefore  ordered  by  the  Court  that  said  "order  to  take  bill  pro 
confesso"  be  and  the  same  is  hereby  set  aside  and  held  for  naught;  that  the 
plaintiff  herein  pay  all  costs  that  have  accrued  in  this  case  from  the  filing 
of  the  Bill  of  Complaint  to  the  day  of  the  entering  of  this  order  and  the  said 
defendant  having  expressed  a  desire  to  amend  its  answer,  said  defendant  is 
hereby  granted  twenty  days'  time  in  which  to  file  said  amended  answer  herein, 
and  the  plaintiff  is  hereby  granted  twenty  days'  time  from  the  filing  of  the 
amended  answer  in  which  to  file  a  reply  to  said  amended  answer. 

HoLLisTEE,  Judge. 


49.    PETITION  FOR  APPEAL. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 

Western  Division. 


Equity  No.  42. 

Entry    Setting   Aside    Order    to    Take    Bill 
Pro  Confesso. 


A   Company, 


Complainant, 


In  Equity — No.  11. 
Petition  for  Appeal. 


vs. 
B   Mfg.   Company, 

Defendant. 

The  above  named  defendant,  conceiving  itself  aggrieved  by  the  decree  and 
orders  made  and  entered  in  the  above  entitled  cause,  on  the  22nd  day  of  De- 


660  Appendix 

cember,  1914,  does  hereby  appeal  from  said  decree  and  orders  to  the  United 
States  Circuit  Court  of  Appeals  for  the  Sixth  Circuit  for  tlie  reasons 
specified  in  the  assignment  of  errors  filed  herewith,  and  prays  that  said  appeal 
may  be  allowed  and  that  a  duly  authenticated  transcript  of  the  record  pro- 
ceedings and  papers  upon  which  said  decree  and  orders  were  made  may  be 
sent  to  the  United  States  Circuit  Court  of  Appeals  for  the  Sixth  Circuit. 

The   B   Mfg.   Company, 
By   C  and  D, 

Attorneys  for  Defendant. 
Dated,  January  20th,  1915. 

The  foregoing  claim  of  appeal  is  allowed. 

Howard   C.    Hollister,   District  Judge. 


50.     ASSIGNMENT  OF  ERRORS. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 

Western  Division. 


A  Company, 


Complainant, 


In  Equity— No.   11. 
Assignment   of  Errors. 


vs. 
B  Mfg.  Company, 

Defendant. 

Now  comes  the  said  defendant  by  its  solicitors  and  says  that  in  the  inter- 
locutory decree  heretofore  rendered  in  this  cause  on  the  22nd  day  of  December, 
1914,  the  Court  erred  in  the  following  particulars: 

(1)  In  holding  Letters  Patent  No.  721,987  to  C,  mentioned  in  the  Bill 
of  Complaint  in  this  cause,  good  and  valid  in  law. 

(2)  In  holding  that  said  defendant,  B  Mfg.  Co.,  had  infringed  both 
claims  of  said  patent  by  its  manufacture  and  sale  of  hames  embodying  said 
invention  described  and  claimed  in  said  patent.  And  defendant  says  that 
the  Court  also  erred  in  the  following  holdings — embodied  in  and  constituting 
the  basis  of  those  above  mentioned  and  of  the  decretal  orders  for  injunction 
and  accounting  for  profits  and  an  inquiry  of  damages — to-wit: 

Etc.— 

Whereiij)on,  defendant  prays  that  said   decreo  may  be  reversed. 

The   B    Mfg.   Company, 
By  D  and  E, 

Ita   Solicitors. 


f)!.     BOND  ON  APPEAL. 

Know  All  Men  by  Those  ProscntH: 

Tliat  we,  the  Ti  Mfg.  Corii[iaiiy,  as  principal,  and  F  and  Ct,  as  sureties, 
aro  licid  and  firmly  bound  unto  the  A  Company,  in  the  full  and  just  sum  of 
orio  thousand  dollars,  to  bo  ]>aid  to  the  said  A  Company,  its  successors  or 
assigns;   to   whiili  jiayincnt,  will  and  truly  to  be  made,  we  biiul  ourselves,  our 


Forms  GfJl 

heirs,  executors  and  administrators,  jointly  and  severally,  by  these  presents. 
Sealed  with  our  seals  and  dated  tliis  23rd  day  of  December  in  the  year  of  our 
Lord  one  thousand  nine  hundred  and  fourteen. 

Whereas,  lately  at  a  term  of  the  District  Court  of  the  United  States  for 
the  Southern  District  of  Oliio,  Western  Division,  in  a  suit  depending  in  said 
Court,  between  the  A  Company  as  complainant  and  the  B  Mfg.  Company  as 
defendant,  an  interlocutory  decree  and  order  of  reference  for  an  inquiry  of 
damages  and  profits  was  rendered  against  the  said  B  Mfg.  Company,  which 
said  decree  and  order  also  directed  the  issue  of  a  perpetual  injunction  against 
said  defendant,  which  said  decretal  order  of  reference  and  for  injunction  was 
ujion  motion  of  the  defendant  suspended  by  the  Court  pending  an  appeal  by 
said  defendant,  of  said  cause  to  the  Circuit  Court  of  Appeals  for  the  Sixth 
District,  to  be  taken  within  thirty  days  from  December  22nd,  1914. 

Now,  the  condition  of  the  above  obligation  is  such,  That  if  the  said  A  Com- 
jiany  shall  prosecute  said  appeal  to  effect,  and  answer  all  damages  and  cost 
if  it  fail  to  make  its  appeal  good,  then  the  above  obligation  to  be  void;  else 
to  remain  in  full  force  and  virtue. 
Sealed  and  delivered  in  presence  of 

B    Mfg.   Company. 

B  Seal 

P  Seal 

G  Seal 

C 
D 
Approved  by 

HoLLisTER,  Judge. 

Southern  District  of  Ohio,  ss. 

I,  F,  one  of  the  sureties  above  named,  do  solemnly  swear  that,  after  paying 
my  just  debts  and  liabilities,  I  am  worth  two  thousand  dollars  in  real  estate 
in  my  own  name,  situate  in  the  County  of  Clinton,  in  said  district. 

F, 

Sworn  to  before  me  on  the  23rd  day  of  December,  1914. 

N    P, 

Notary  Public. 
Southern  District  of  Ohio,  ss. 

I,  G,  one  of  the  sureties  above  named,  do  solemnly  swear  that,  after  paying 
my  just  debts  and  liabilities,  I  am  worth  two  thousand  dollars  in  real  estate 
in  my  own  name,  situate  in  the  County  of  Clinton  in  said  district. 

G, 

Sworn  to  before  me  on  the  23rd  day  of  December,  1914. 

N    P, 

Notary  Public. 


662  Appendix 

52.    PRAECIPE     OF     APPELLANT     FOR     PORTION     OF 

RECORD    TO    BE    INCORPORATED    INTO 

TRANSCRIPT  OF  APPEAL. 

No.   11. 
A  Company, 


-    Praecipe. 


Complainant, 
vs. 
B   Mfg.    Company, 

Defendant. 
To  the  Clerk: 

You  will  please  prepare  the  record  in  the  above  entitled  cause  for  filing 
in  the  appeal  taken  from  the  decision  of  the  District  Court  to  the  Circuit 
Court  of  Appeals,  to  include  the  following  papers  only: 

(1)  The  pleadings:  Interlocutory  decree;  petition  for  rehearing  and 
entry;  motion  for  and  entry  on  suspension  of  injunction,  etc.;  petition  for 
appeal;  assignment  of  errors;  citation. 

(2)  The  affidavits,  depositions  and  testimony  of  witnesses  in  the  cause 
as  reduced  to  narrative  form  by  the  defendant  and  herewith  presented  type- 
written, under  General  Equity  Rule  No.  75. 

(.3)     Documentary   exhibits   as   follows: 

(a)  File  wrapper  and  contents  Wiedrich  patent  721,987. 

(b)  File  wrapper  and  contents  Lawson  patent  734,074. 

(Both  in  part  as  per  mas.  herewith  submitted.) 

(c)  Copies  of  patents  cited  in  answer,  as  follows:  Kaffer,  1866; 
Hugill,  1882;  James,  1887;  Stearns,  1888;  Swigert,  1892;  Knisley,  1892; 
Schellhammer,  1897;  Swigert,  1899;  Surghnor,  1899;  Dodson,  1899;  Lawson, 
190.3;  Knapp,  1873;  Phillips,  1881;  Powers,  1888;  Dumas,  1897;  Hopking, 
1884;   Johnson,  1887;  and  patent  in  suit  to  Wiedrich,  1903. 

(Patent  office  copies  to  be  furnished  by  defendant  for  binding.) 

(d)  Copies  of  p.  1900  catalogue. 

(To  be  furnished  for  binding  by  defendant.) 
(4)  The  testimony  taken  and  filed  in  the  cause,  being  Expert  Affidavits 
of  C  and  D;  Deposition  of  C  taken  at  Knox^'ille,  Tenn.,  June  19,  1914;  and 
oral  testimony  of  witnei^ses  given  during  the  hearing  of  the  cause; — all  of 
which  has  been  reduced  to  narrative  form,  typewritten,  as  per  Equity  Rule 
75,  and  is  herewith  filed  and  a  duplicate  of  which  has  been  also  delivered  to 
Mr.  R,  solicitor  and  of  counsel  for  iihiintifl",  together  with  service  of  a  copy  of 
this  praecipe. 

n  &  K, 
Solicitors  and  of  Counsel   for  Defendant. 


Forms  663 

53.  PRAECIPE  OF  APPELLEE  FOR  PORTIONS  OF 

RECORD  TO  BE  INCORPORATED  INTO 

TRANSCRIPT  ON  APPEAL. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 

Western  Division. 


A  Company, 
B  Company, 


Complainant, 


Defendant. 


■    In   Equity  No.  11. 


Praecipe. 
To  the  Clerk: 

You  will  please  include  in  the  transcript  on  appeal  the  following: 

A  copy  of  Wiedrich  Patent  721,987. 

Complainant's  Exhibit  Drawing   of   Deft's   Hame. 

Deft's  Exhibit  Assignment. 

Complainant 's  Exhibit  1902  Catalogue. 

Complainant's  Exhibit  Western  Hame  1897  Catalogue. 

Star  Hame  Company  Catalog. 

C, 

D, 

E, 
Solicitors  and  Counsel  for  Complainant. 

54.    MOTION  TO  APPROVE  NARRATIVE. 

UNITED   STATES  DISTRICT   COURT, 

Southern  District  of  Ohio, 

Western  Division. 

No.  11. 

A  Company,  ^ 

Complainant, 
^s.  .   Motion. 

B   Mfg.   Company, 

Defendant. 

Now  comes  the  defendant  and  having,  as  required  by  Oeneral  Equity 
Rule  No.  75,  reduced  the  testimony  in  the  cause  to  narrative  form,  and  lodged 
same  with  the  Clerk  of  this  Court  on  January  30th,  1915,  and  at  the  same 
time  served  a  copy  thereof  upon  the  complainant's  counsel;  and  said  com- 
plainant having  on  February  12,  1915,  served  defendant  with  a  list  of  pro- 
posed alterations  and  additions  which  defendant  cannot  accept, — moves  the 
Court  to  approve  the  narrative  as  submitted,  or  to  make  such  order  as  it  may 
deem  just  in  the  premises. 

The  B.  Mfg.  Company, 
By  C  and  D, 

Solicitors  and  of  Counsel. 


•J 


664  Appendix 

55.     STIPULATION  AS  TO  CONTENTS  OF  PRINTED 
RECORD  ON  APPEAL. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 

Western  Division. 


A  Company, 

B  Mfg.  Company, 


Defendant. 


Complainant, 
vs.  j-    In  Equity  No.  11. 


Stipulation. 


It  is  agreed  by  and  between  counsel  for  the  parties  respectively  that  the 
printed  record  on  appeal  shall  contain  the  following,  only: 

(1)  The  Bill— March,  1913. 
Answer — September,  1913. 

Amendment    to    Answer — 23rd    March,    1914. 

Amendment  and  supplement  to  Answer — October  2,  1914. 

Decree — December  22,  1914. 

Entry  refusing  rehearing — December  22,   1914. 

Entry  suspending  injunction. 

Petition  for  Appeal. 

Assignment  of  errors. 

Entries  extending  time  for  filing  appeal. 

Citation  for  Appeal. 

(2)  Affidavit  of  Wm.  A.  McCallum.    1 

Affidavit  of  John  F.  Schroeder.     V    In  narrative  form. 
Deposition  of  John  F.  Schroeder.  J 

(3)  Oral  testimony  of  witnesses  taken  at  the  hearing  and  adjouriunenta. 

(Stenographically  reproduced.) 

(4)  Documentary   Exhibits  as  follows: 

Patent  office  copies  of  the  following  letters  patent:  Kaffer, 
Hugill,  James,  Stearns,  Swigert,  Knisley,  Schcllhammer,  Swigert, 
Surghnor,  Dodson,  Lawson,  Knapp,  Phillips,  Powers,  Dumas,  Hop- 
king,  Johnson,   Wiedrich,   Kirksoy   173,022. 

File  wrapper  and  contents  of  Lawson  and  Wiedrich  applications 
for  patent,  omitting  the  specification   in  each   case,  but  stating  the 
original  claims  (both  patents  being  presented  in  the  foregoing  list). 
Page  27,  1900  Catalog  of  Western  Hame  Works. 
Drawing  submitted  by  Chaise,  Complainant's  Expert. 
Exhibit  B  Company  Catalogue. 
The  structural  exhibits  used  at  the  hearing  to  be  used  on  the  appeal  hearing 
as  coun.scl  may  desire. 

F  and  G, 
For  the  B   Mfg.    Company. 
H, 
For  the  A  Company. 


Forms  6G5 

56.    MANDATE  OP  U.  S.  CIRCUIT  COURT  OF  APPEALS. 

UNITED   STATES   CIRCUIT   COURT   OF   APPEALS   FOR   'TWE    SIXTH 

CIRCUIT. 


ss. 


The  United  States  of  America,1^ 
Sixth  Judicial  Circuit.  J 

The  President  of  the  United  States  op  America. 

To  the  Honorable,  the  Judges  of  the  District  Court  of  the  United  States  for 

the  Southern  District  of  Ohio,  Greeting: 

Whereas,  lately  in  the  District  Court  of  the  United  States  for  the  Southern 
District  of  Ohio,  before  you  or  some  of  you,  in  a  cause  between  A  Company, 
complainant,  and  B  Company,  defendant,  a  decree  was  entered  December  22, 
1914,  in  favor  of  said  complainant  and  against  said  defendant,  as  by  the  in- 
spection of  the  transcript  of  the  record  of  the  said  District  Court,  which 
was  brought  into  the  United  States  Circuit  Court  of  Appeals  for  the  Sixth 
Circuit  by  virtue  of  an  appeal  agreeably  to  the  act  of  Congress,  in  such  cases 
made  and  provided,  fully  and  at  large  appears. 

And  whereas,  in  the  present  term  of  October,  in  the  year  of  our  Lord,  one 
thousand  nine  hundred  and  fifteen,  the  said  cause  came  on  to  be  heard  before 
the  said  United  States  Circuit  Court  of  Appeals  for  the  Sixth  Circuit,  on  the 
said  transcript  of  record,  and  was  argued  by  counsel; 

On  consideration  whereof,  it  is  now  here  ordered,  adjudged  and  decreed 
by  this  Court,  that  the  decree  of  the  said  District  Court,  in  this  cause  be  and 
the  same  is  hereby  reversed  with  costs  and  the  cause  is  remanded  to  the  said 
District  Court  with  directions  to  dismiss  the  bill. 
November  12,  1915. 

You,  therefore,  are  hereby  commanded  that  such  proceedings  be  had  in 
said  cause,  in  conformity  with  the  opinion  and  decree  of  this  Court,  as  ac- 
cording to  right  and  justice,  and  the  laws  of  the  United  States,  ought  to  be 
had,  the  said  appeal  notwithstanding. 

Witness  the  Honorable  Edward  Douglass  White,  Chief  Justice 
of  the  United  States,  the  twenty-first  day  of  December,  in 
the  year  of  our  Lord  one  thousand  nine  hundred  and  fifteen. 
Costs  of  Appellant: 

Clerk    $ 

Printing   Record    

Attorney    Clerk  of  the  United  States   Circuit 

Court  of  Appeals  for  the  Sixth 

$ District. 


666 


Appendix 


57.     ORDER  DISMISSING  BILL. 

UNITED  STATES  DISTEICT  COURT, 

Southern  District  of  Ohio, 

Western  Division. 

No.  11. 


A  Company, 


Complainant, 


B  Mfg.  Company, 


Defendant. 


.    In   Equity. 


Entry  of  Dismissal. 

This  day  this  cause  coming  on  to  be  heard  upon  the  mandate  heretofore 
filed  in  this  ease  from  the  U.  S.  Circuit  Court  of  Appeals,  Sixth  Circuit,  in 
which  the  finding  of  said  Court  was  in  favor  of  the  B  Mfg.  Company,  against 
the  A  Company,  remanding  this  cause  to  this  Court  with  instructions  to  dis- 
miss the  BUI  in  Equity  with  costs  in  favor  of  B  Mfg.  Company,  as  against 
A  Company,  and  the  Court  being  fully  advised  in  the  premises,  hereby  orders 
that  the  Bill  in  Equity  in  this  case  be,  and  the  same  is  hereby  dismissed  with 
costs  against  the  A  Company. 

HOLLISTER, 

U.   S.  District  Judge,  Southern  District 
of  Ohio,   Western  Divisiou. 
Approved  as  to  form : 
H, 
Counsel  for  Plaintiff. 


58.     PETITION  FOR  REMOVAL. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 

Western  Division. 


A,  as  trustee, 


B   et    al.. 


Plaintiff, 


Defendants. 


Petition  for  Removal  of  Cause  from  the 
Common  Pleas  Court  of  Greene  County, 
Ohio. 


To  the  Honorable,  the  Judge  of  the  District  Court  of  the  United  States  for 

the  Southern  Distri(^t  of  Ohio: 

Your  petitioner,  the  above-named  B,  respectfully  shows  to  this  honorable 
Court  that  A,  as  i)laintifT,  on  February  4,  1919,  brought  an  alleged  suit  in 
the  Common  Pleas  Court  of  Greonn  County,  Oliio,  against  your  petitioner  as 
defendant;  tliat  the  matter  in  dispute  in  said  {)ritend('d  cause  exceeds  the  sura 
or  value  of  $.'5,000,  exclusive  of  interest  and  costs;  tliat  said  controversy  is 
between  citizens  of  different  states;  that  the  present  time  is  before  the  trial 
thereof;  that  at  tlio  time  of  tlie  commencement  of  said  suit  and  ever  since, 


Forms  667 

said  plaintiff  has  been  and  is  now  a  citizt-n  of  Ohio  while  defendant  has  been 
and  is  now  a  citizen  of  Maryland;  that  your  petitioner  desires  to  remove  said 
suit  before  the  trial  thereof  into  this  Court.  Said  suit  is  in  pursuance  of 
an  attempt  to  utilize  adverse  local  influence  in  said  county  in  getting  a  local 
court  to  decide  questions  now  pending  in  this  Court — the  very  same  ques- 
tions brought  before  this  Court  in  a  suit  by  your  petitioner  as  plaintiff 
against  said  Finney  as  defendant,  No.  165,  in  equity,  to-wit,  the  rights  of 
petitioner  to  a  so-called  fund  in  said  A's  custody  and  the  rights  of  said  A 
to  act  as  trustee  of  all  of  said  "fund,"  whose  value  exceeds  $10,000.  The  suit 
in  this  court  began  January  16,  1919,  before  the  pretended  beginning  of  that 
in  said  state  court,  and  said  state  court  has  no  jurisdiction  to  try  or  decide 
said  questions  while  they  are  pending  in  this  court,  and  cannot  give  them  any 
valid  trial. 

Your  petitioner  further  shows  unto  this  honorable  court  that  from  prej- 
udice and  local  influence  in  favor  of  plaintiff  and  adverse  to  defendant,  he 
will  not  be  able  to  obtain  justice  in  said  court  or  in  any  other  state  court 
to  which  said  defendant  may,  under  the  laws  of  Ohio,  have  a  right  to  remove 
said  cause  on  account  of  said  prejudice  or  local  influence.  The  number  of 
eaid  cause  is  14,965    (petitioner  is  informed). 

Wherefore  your  petitioner  prays  that  an  order  be  entered  for  the  removal 
of  said  cause  from  said  Common  Pleas  court  to  this  court  and  for  the  issu- 
ance of  a  writ  of  certiorari  commanding  the  return  to  this  court  of  a  certified 
copy  of  the  record  in  said  state  court. 

B. 
State  of  Ohio,  Hamilton  Co.,  ss: 

B,  being  duly  sworn,  says  that  he  is  defendant  in  the  above-entitled 
petition,  that  he  has  read  the  same,  and  believes  the  allegations  therein  to 
be  true. 

B. 

Subscribed  and  sworn  to  before  me  this  21st  day  of  April,  1919. 

N.  P., 
Notary  Public,  Hamilton  Co.,  Ohio. 


59.     ORDER  GRANTING  REMOVAL  AND  DIRECTING  THE 
ISSUANCE  OF  A  WRIT  OF  CERTIORARI. 

UNITED  STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 

Western  Division. 


A,  as  Trustee, 

B,  et  al., 


Plaintiff. 
Defendants. 


Equity  No.  173. 


Oeder. 


This  cause  came  on  to  be  heard  upon  petition  and  affidavit  of  B  at  this 
term  and  was  argued  by  counsel  for  the  defendant,  B;  and  thereupon  mqtion 


668  Appendix 

for  writ  and  upon  consideration  thereof,  it  was  ordered,  adjudged  and  decreed 
that  this  cause,  which  is  numbered  14,965  in  the  Common  Pleas  Court  of  the 
State  of  Ohio  in  and  for  the  County  of  Oreene,  be,  and  it  hereby  is  removed 
to  the  United  States  District  Court  for  the  southern  district  of  Ohio,  Western 
division,  and  that  a  vrrit  of  certiorari  issue  to  the  clerk  of  the  Common  Pleas 
Court,  with  a  copy  of  this  order,  directing  said  clerk  to  certify  and  send 
to  this  court  the  record  of  the  proceedings  in  said  case  and  court. 

HoLLisTER,  Judge. 

60.     WRIT  OF  CERTIORARI. 

THE  PRESIDENT  OF  THE  UNITED  STATES  OF  AMERICA, 

To  the  Common  Pleas  Court  of  the  State  of  Ohio,  in  and  for  the  County  of 

Greene,  Greeting: 

It  being  represented  to  us  that  there  is  now  pending  before  you  a  certain 
cause  No.  14,965,  wherein  A  as  trustee,  is  plaintiff,  and  B,  et  al.,  are  defend- 
ants, which  cause  was  commenced  in  the  Common  Pleas  Court  of  the  State 
of  Ohio,  in  and  for  the  County  of  Greene,  by  A,  as  trustee,  against  the  said 
B  et  al.,  for  the  purpose  of  determining  the  rights  of  the  said  B  to  a  so-called 
fund  in  said  A's  custody,  and  the  rights  of  said  A  to  act  as  trustee  of  said 
fund,  and  that  no  trial  has  yet  been  had;  and  whereas,  said  defendant  B 
has  caused  to  be  filed  in  our  district  court  for  the  southern  district  of  Ohio, 
western  division,  his  petition  for  the  removal  of  the  said  cause  from  the 
Common  Pleas  Court  to  the  District  Court  of  the  United  States  for  the 
Southern  District  of  Ohio,  Western  Division,  and  has  made  it  appear  to  us 
that,  from  prejudice  or  local  influence  he  will  not  be  able  to  obtain  justice 
in  such  state  court  or  any  other  state  court  to  which  the  defendant  may, 
under  the  laws  of  the  state,  have  the  right  to  remove  the  said  cause,  we  are 
willing  to  remove  the  said  cause,  and  that  the. records  and  proceedings  therein 
should  be  certified  by  said  Common  Pleas  Court  and  removed  into  our  Dis- 
trict Court  of  the  United  States  in  and  for  the  Southern  District  of  Ohio, 
Western  Division,  and  do  hereby  command  you  to  certify  and  send  the  records 
and  proceedings  aforesaid,  with  all  things  concerning  the  same,  to  the  said 
district  court  of  the  United  States,  together  with  this  writ,  so  that  you  may 
have  the  same  at  the  United  States  courthouse,  in  the  City  of  Cincinnati, 
in  the  said  District  and  Division,  in  the  said  District  Court  to  be  then  and 
there  held,  that  the  said  district  court  may  cause  to  be  done  thereupon  what 
of  right,  according  to  the  laws  of  the  United  States,  should  be  done. 

Witness,  the  Honorable  Howard  C.  HoUister,  Judge  of  said 
District  Court,  and  the  seal  of  the  said  District  Court 
hereto  affised,  the  1st  day  of  May,  A.  D.  1919. 

B.    E.    DiLLEY, 

Clerk  of  said  District  Court. 
By  F.  V.  LAMB;  Deputy. 


Forms  669 

61.    ORDER  REMANDING  CASE. 

UNITED   STATES  DISTRICT  COURT, 

Southern  District  of  Ohio, 

Western  Division. 


A,  Trustee, 

B,  et  al., 


Plaintiff. 
Defendant. 


In  Equity. 
No.  172. 


Entry. 


This  day  this  cause  came  on  to  be  heard  upon  the  pleadings  and  the  evi- 
dence. Upon  due  consideration  whereof  the  Court  finds  that  the  evidence 
fails  to  show  that  B  the  defendant  is  unable  to  obtain  justice  as  a  citizen 
of  the  United  States  on  account  of  prejudice  or  local  influence  in  the  Common 
Pleas  Court  of  Greene  County,  Ohio,  the  Court  at  which  said  action  originated, 
and  the  Court  further  finds  that  there  is  no  ground  for  the  removal  of  said 
cause  as  expressed  in  the  petition  filed  in  said  cause. 

It  is  therefore  ordered,  adjudged  and  decreed  by  this  Court  that  said 
cause  be  remanded  back  to  the  said  Court  of  Common  Pleas  of  Oreene  County, 
Ohio,  the  Court  at  which  the  cause  originated,  and  the  Clerk  of  this  Court 
is  hereby  instructed  and  directed  to  forward  all  papers  and  pleadings  filed 
in  the  said  Common  Pleas  Court  to  the  Clerk  of  the  Common  Pleas  Court  of 
Greene  County,  Ohio,  together  with  a  copy  of  this  Entry  remanding  same 
to  the  said  Court  for  further  disposition. 

To  all  of  which  the  defendant  B,  in  open  court  was  allowed  an  exception. 
Form  as  per  Equity  Rule  75,  type-written,  and  is  herewith  filed,  and  a  dupli- 
cate of  which  has  been  also  delivered  to  E,  Solicitor  and  of  counsel  for  plaintiff, 
together  with  a  copy  of  this  Praecipe. 

F  and  G, 
Solicitors  and  of  Counsel  for  Defendant. 

Service  hereof  and  receipt  of  copy  of  typewritten  duplicate  under  items 
2,  3,  (a),  (b),  and  4  of  this  praecipe  acknowledged  this  29th  day  of  Janu- 
ary, A.  D.  1915. 

E, 
Solicitor  and  of  Counsel  for  Complainant. 


QUESTIONNAIRE  IN  FEDERAL 
PROCEDURE 


INTRODUCTORY. 

1.  By  what  antliority  were  federal  courts  created? 

2.  What  body  may  create  federal  courts? 

3.  Was  it  obliged  to  create  any  such  courts? 

4.  With  what  authority  did  the  courts  so  created  have  to  be  en- 
dowed ? 

5.  Is  a  Provost  Court  a  federal  court? 

What  jurisdiction  may  it  be  given?  ' 

6.  Is  there  any  federal  common  law  ? 

7.  Do  the  rules  of  the  common  law  furnish  the  guide  in  the  con- 
struction of  federal  laws? 

8.  Does  the  common  law  as  to  procedure  ever  furnish  a  guide 
for  the  federal  courts? 

9.  To  give  a  federal  court  jurisdiction  of  a  case  must  the  federal 
constitution  and  statute  law  concur  in  granting  it? 

10.  What  duty  has  a  federal  court  to  determine  whether  or  not 
it  has  jurisdiction  of  a  case  ? 

11.  Must  the  record  of  the  court  show  affirmatively  that  it  has 
jurisdiction  ? 

What  is  meant  by  this? 

12.  May  the  fact  that  there  has  not  been  proper  service  be 
waived,  so  that  the  federal  court  may  hear  the  case?  If  so,  how 
is  this  done? 

13.  May  the  fact  that  the  federal  court  has  not  jurisdiction 
over  the  subject  matter  be  waived,  so  that  the  federal  court  may 
hear  the  case  ?    If  so,  how  is  this  done  ? 

14.  Is  there  any  presumption  as  to  the  jurisdiction  of  a  federal 
court  in  relation  to  a  case  ? 

15.  Is  the  question  of  jurisdiction  independent  of  that  having 
to  do  with  the  merits  of  the  case? 

16.  Who  has  the  burden  of  proving  that  the  court  has  jurisdic- 
tion? 

671 


672  Appendix 

II. 

DISTRICT  COURTS. 
A.     Organization. 

17.  Section  2.  What  is  the  salary'  of  judges  of  the  federal  dis- 
trict courts? 

18.  Section  4.  How  are  deputy  clerks  of  federal  district  courts 
appointed  and  removed"/ 

19.  Section  4.  Who  takes  the  place  of  the  clerk  of  a  federal 
district  court  in  case  of  his  death? 

20.  Section  4.  What  liabilities  does  such  a  clerk's  bond  cover? 

21.  Section  4.  What  recourse  has  such  a  clerk,  or  his  repre- 
sentative after  his  death,  when  he,  or  his  representative,  pays  for 
losses  occasioned  by  the  default  of  a  deputy  clerk? 

22.  Section  6.  Where  are  the  records  of  federal  district  courts 
kept  ? 

23.  Section  7.  What  is  the  result  of  changing  the  time  for  hold- 
ing court  upon  cases,  etc.,  already  in  progress  before  the  change? 

24.  Section  8.  What  is  the  result  of  the  arrival  of  the  time  for 
another  session  of  court  upon  actions  already  pending?  When  is 
such  an  action  pending? 

25.  Section  9.  What,  if  any,  acts  may  be  done  by  a  federal 
court  or  judge  while  a  session  of  the  court  is  not  being  held? 

26.  Section  10.  May  federal  district  courts  hold  adjournments 
for  the  trial  of  criminal  causes? 

27.  Section  11.  Under  section  11  may  an  adjournment  be 
equivalent  to  an  order  that  there  shall  be  a  special  term  ? 

28.  Section  12.  In  what  way  may  a  judge  of  the  federal  dis- 
trict court  have  such  court  adjourned  when  he  cannot  attend? 

29.  Section  13.  May  another  judge  ever  be  appointed  to  tem- 
porarily fill  the  place  of  a  judge  of  a  federal  district  court,  who  is 
disabled  from  doing  his  work?  If  so,  who  may  be  appointed,  and 
how  is  the  appointment  made? 

30.  What  is  meant  by  a  "judge  de  facto"? 

31.  Section  14.  May  a  judge  be  appointed  to  aid  another  judge, 
if  the  business  of  the  latter  has  accumulated  so  that  he  cannot  at- 
tend to  it  ?  If  so,  who  may  be  appointed,  and  how  is  the  appoint- 
ment made? 

32.  Section  15.  When,  if  ever,  does  the  chief  justice  of  the 
United  States  Sui)reme  Court  make  the  appointment  provided  for 
in  .sections  13  and  14? 

33.  Section  16.  ]\lay  api)ointnients  made  under  the  authority 
of  sections  13,  14,  and  15  be  revoked?  If  so,  who  revokes?  May 
new  api)ointments  be  made  after  such  revocation  ? 

34.  Section  17.  How  is  an  appointment  authoi-i/cd  bv  section 
17  made? 

35.  Section  1H.  I'ndcr  whiit,  if  any,  cii-cnmstinices  may  a  judge 
ol"  one  (iislricl   lie  assigned  to  hold  eourl   in  anotJiei-  district?     IIow 


Questionnaire  in  Federal  Procedure  673 

is  the  assignment  made?     May  a  judge  appoint  himself  to  thus 
serve  ? 

36.  Section  19.  What  are  the  duties  of  judges  appointed  as 
provided  by  sections  13  through  18?  What  is  the  eit'ect  of  the 
acts  of  such  a  judge  serving  under  the  appointment  provided  for 
by  those  sections? 

37.  Section  20.  What  is  meant  by  the  following  terms  in  sec- 
tion 20: 

(1)  "in  any  way  concerned  in  interest  in  any  suit,"  (2)  "of 
counsel,"  (3)  "material  witness"? 

38.  Section  20.  For  a  judge  to  be  of  counsel  so  that  he  is  dis- 
qualified from  sitting  in  a  case,  must  he  be  connected  as  counsel 
with  the  very  ease  in  which  he  is  sitting? 

39.  Section  20.  Who  is  to  decide  whether  or  not  a  judge  is  dis- 
qualified under  section  20  ? 

40.  Section  20.  What  are  the  proper  proceedings  to  take  to 
have  a  disqualified  judge  replaced  by  another  judge  ? 

41.  Section  20.  May  there  be  a  waiver  of  the  right  to  object  be- 
cause of  such  disqualification? 

42.  Section  21.  May  the  personal  bias  or  prejudice  of  a  judge 
of  a  federal  district  court  be  the  grounds  of  removal  ?  If  so,  what 
is  the  procedure  used  to  obtain  a  change  of  judges?  How  many 
changes  may  be  obtained  ? 

43.  Section  22.  What  is  the  effect  of  a  vacancy  in  the  office  of 
a  judge  of  a  federal  district  court  upon  a  process,  pleading,  or  pro- 
ceeding? 

44.  Section  22.  Under  section  22,  what  is  the  effect  upon  a  bond 
of  the  postponement  of  a  criminal  trial  because  of  a  vacancy  oc- 
curring between  the  time  of  the  giving  of  the  bonds,  and  the  date 
set  for  the  trial? 

45.  How  is  the  business  of  a  federal  district  court  divided? 

B.  Jurisdiction. 

Questions  46  through  87  are  on  the  24th  section,  1st  subdivision, 
of  the  Judicial  Code. 

46.  What  is  a  "suit"? 

47.  What,  if  any,  distinction  is  there  between  a  "suit,"  an 
"action,"  a  "cause  of  action,"  and  a  "case"? 

48.  When  is  a  suit  one  of  a  civil  nature? 

49.  When  is  a  suit  equitable  in  its  nature? 

50.  When  is  a  suit  brought  by  the  United  States? 

51.  When  is  one  an  officer  of  the  United  States? 

52.  When  does  one  bring  a  suit  in  his  capacity  of  an  officer 
of  the  United  States? 

53.  When  is  an  action  brought  between  citizens  of  the  same 
state  claiming  lands  under  grants  from  different  states  ? 

54.  May  citizens  of  different  states  claiming  lands  under  grants 
from  different  states  get  into  the  federal  district  court  on  that 
ground  ? 

Wheaton  C.  F.  P.— 43 


C74  Appendix 

55.  "When  does  a  controversy  concerning  a  matter  involve  more 
than  three  thousand  dollars  ($3,000),  exclusive  of  costs  and  in- 
terest ? 

(a)  What  is  the  basis  of  determining  the  amount  when  only 
money  damages  are  claimed?  Is  the  result  the  same,  if  the  law 
liquidates  the  damages? 

(b)  What  is  the  basis  of  determining  the  amount  when  tht 
recovery,  etc.,  of  property  other  than  money  is  involved? 

(c)  If  the  amount  of  damages  is  not  computable,  may  the  case 
be  brought  in  the  federal  district  court,  if  it  is  one  in  which  three 
thousand  dollars  ($3,000),  exclusive  of  costs  and  interest,  must 
be  involved? 

(d)  What  claims  may  be  joined  to  make  up  the  jurisdictional 
amount  ? 

(e)  May  attorney's  fees  or  the  value  of  interest  coupons  be 
included  to  make  up  the  necessary  amount? 

(f)  What  is  the  effect  of  counterclaims  or  admitted  defenses 
upon  the  amount  in  controversy? 

56.  How  must  the  amount  in  controversy  be  pleaded? 

57.  When,  in  general,  is  a  federal  question  involved  in  a  case? 

58.  Does  the  fact  that  federal  statutes  are  referred  to  in  the 
pleading,  or  that  a  federal  statute  must  be  consulted  to  determine 
the  meaning  of  a  contract,  or  the  scope  or  effect  of  a  local  law,  or 
that  property  once  owned  by  the  United  States  is  involved,  prove 
that  a  federal  question  is  involved  ? 

59.  If  a  federal  question  is  involved,  does  the  fact  that  questions 
of  local  law  appear,  or  that  the  case  is  finally  decided  upon  a  point 
of  local  law,  oust  the  federal  district  court  of  jurisdiction? 

60.  To  what  does  one  look  to  determine  whether  or  not  a  fed- 
eral question  is  involved? 

61.  Need  facts  of  which  the  federal  district  court  will  take  ju- 
dicial notice  be  alleged  to  show  that  a  federal  question  is  involved  ? 

62.  Is  a  statement  to  the  effect  that  a  federal  question  is  in- 
volved a  proper  fashion  in  which  to  set  forth  that  fact  ? 

63.  May  a  state  be  sued  without  its  consent  in  the  federal 
courts  by  one  of  its  citizens  upon  the  suggestion  that  the  case  is 
one  that  arises  under  the  constitution  and  laws  of  the  United 
States  ? 

64.  Is  a  citizen  of  a  territory  deemed  a  citizen  of  a  state  under 
section  24? 

65.  Does  a  federal  district  court  have  jurisdiction  over  a  con- 
troversy between  a  citizen  of  a  state  and  a  citizen  of  a  foreign 
country  and  a  citizen  of  a  territory? 

66.  Is  a  citizen  of  a  teri-ilory,  the  District  of  Columbia,  or  Cuba, 
a  citizen  of  a  slate? 

67.  Is  a  ti-il)}il  Indian  a  citizen  of  a  state? 

6H.  Docs  an  avei-nient  to  the  cfTect  that  an  action  is  between 
"a  citizen  of  MassMclinsctts"  and  "a  citizen  of  London"  jn-esent 
a  case  ])et\veeii  a  citizen  of  a  state  of  the  I'nitcd  States  and  a 
forei«rn  state? 

69.      Is  a  c(ir|)()i  at  ion  (»!'  a  slate  a  citizen  of  lliat  slate? 


Questionnaire  in  Federal  Procedure  675 

70.  Ma}'-  a  citizen  of  a  foreign  conntry  sue  a  citizen  of  another 
foreign  counliy  in  a  federal  district  court? 

71.  Must  all  the  parties  plaintiff  be  citizens  of  different  states 
than  all  of  the  parties  defendant  when  the  jurisdiction  of  the  fed- 
eral district  court  is  based  upon  diversity  of  citizenship? 

72.  What  bearing  upon  question  71  has  the  fact  that  some  of 
those  joined  are  nominal  parties,  or  that  the  action  is  ancillary? 
When  is  one  a  nominal  party?    What  is  an  ancillary  action? 

73.  When  parties  are  suing  or  being  sued  in  a  representative 
capacity,  whose  citizenship  is  looked  to? 

74.  What  is  meant  by  citizenship? 

75.  What,  in  general,  is  the  citizenship  of  minors  and  married 
women  ? 

76.  May  a  federal  district  court  place  parties  in  the  proper  re- 
lation to  a  suit  as  plaintiffs  and  defendants? 

77.  May  one  effectively  change  his  domicile  for  the  purpose  of 
suing  in  the  federal  district  court? 

78.  What  are  the  exceptions  to  the  general  rule  that  one  can- 
not sue  upon  a  chose  in  action  in  the  federal  district  court? 

79.  What  is  meant  by  a  "chose  in  action"? 

80.  What  is  meant  by  an  "assignment"  of  a  chose  in  action? 

81.  What  is  meant  by  a  foreign  bill  of  exchange? 

82.  What  is  meant  by  an  "instrument  payable  to  bearer"? 

83.  Is  a  county  considered  a  corporation  under  that  portion  of 
section  24,  subdivision  1,  which  deals  with  bearer  instruments  made 
by  a  corporation? 

84.  If  Adams,  an  accommodation  indorser  and  payee  of  a  ne- 
gotiable note  is  a  citizen  of  Pennsylvania,  and  the  maker  is  a  citi- 
zen of  Pennsjdvania,  and  the  holder  is  a  citizen  of  Colorado,  may 
the  holder  sue  the  maker  in  a  federal  district  court  ? 

85.  If  the  action  is  by  the  holder  of  a  note  against  an  indorser 
thereof,  need  it  be  shown  that  the  payee  could  have  sued  the  maker 
in  the  federal  district  court  on  the  ground  of  diversity  of  citizen- 
ship? 

86.  Is  the  citizenship  of  intermediate  parties  material  if  the 
original  payee  and  the  one  suing  on  a  chose  in  action  are  citizens 
of  states  other  than  that  of  which  the  original  obligor  who  is  be- 
ing sued  is  a  citizen? 

87.  At  what  time  must  there  be  a  diversity  of  citizenship  be- 
tween the  original  obligor  and  obligee,  and  between  the  one  suing 
and  the  one  being  sued? 

88.  Section  24-2.  What  is  a  crime  ? 

89.  Section  24-2.  Have  federal  courts  jurisdiction  over  com- 
mon law  crimes? 

GO.  Section  24-3.  What  is  a  civil  cause  of  maritime  jurisdic- 
tion ? 

91.  Section  24-3.  Over  what  causes  of  that  nature  have  the 
state  courts  jurisdiction? 

92.  Section  24-3.  What  amounts  to  a  seizure? 

93.  Section  24-3.  What  facts  must  exist  to  sustain  a  libel  in 
admiralty  ? 


676  Appendix 

94.  Section  24-5.  What  is  meant  by  a  case  arising  under  an  in- 
ternal revenue  law? 

95.  Section  24-5.  What  is  a  tonnage  duty  ? 

96.  Section  24-7.  When  do  suits  arise  under  the  patent,  copy- 
right, or  trade  mark  laws? 

97.  Section  24-7.  May  the  federal  courts  grant  damages  for 
past  infringements  ? 

98.  Section  24-8.  When  do  suits  arise  under  laws  regulating 
commence  ? 

99.  Do  the  commerce  courts  still  exist?  If  not,  what  courts 
transact  its  former  business? 

100.  Section  24-9.    What  are  ' '  penalties  and  forfeitures ' '  ? 

101.  Section  24-10.  What  is  a  ''debenture"?  What  is  a  "draw- 
back"? 

102.  Section  24-11.  When  does  one  suffer  injury  to  person  or 
property  while  he  is  acting  for  the  protection  or  collection  of  rev- 
enues for  the  United  States  or  to  enforce  the  right  of  the  citizens 
of  the  United  States  to  vote  in  the  several  states? 

103.  Section  24-12.  What  are  the  conspiracies  mentioned  in  sec- 
tion 24-12  ? 

104.  What  is  meant  by  a  "conspiracy"? 

105.  What  is  the  meaning  of  "citizen"  as  used  in  section  24-12 ? 

106.  Section  24-12.  What  is  a  "right  or  privilege  of  a  citizen  of 
the  United  States"? 

107.  Section  24-14.  When  is  one  deprived  under  color  of  a 
statute,  etc.,  of  a  right,  etc.,  secured  by  the  constitution  or  laws 
of  the  United  States  for  the  equal  protection  of  citizens  of  the 
United  States,  or  of  all  persons  within  its  jurisdiction? 

108.  Section  24-15.  AVhen  is  a  suit  brought  to  recover  the  pos- 
session of  an  office  of  which  one  has  been  deprived  because  persons 
have  been  denied  the  right  to  vote  because  of  race,  color,  or  pre- 
vious condition  of  servitude? 

109.  Section  24-18.  What  is  a  "consul"? 

110.  Section  24-18.  When  a  consul  is  a  necessary  party,  may  an 
action  be  brought  in  a  federal  district  court  against  the  consul  and 
another  person,  though  the  latter  could  not  be  sued  alone  in  said 
(;oiirt  ? 

111.  Section  24-19.  What  are  "matters  and  proceedings  in 
bankruptcy"? 

112.  Section  24-20.  Can  the  United  States  be  sued  in  the  fed- 
eral district  court  without  its  consent? 

113.  Section  24-20.  If  A  has  a  claim  for  more  than  ^1^10,000, 
but  limits  his  suit  to  that  amount,  may  he  get  into  the  district 
coni't  under  this  section? 

114.  Seclioji  24-20.  If  he  claims  more  than  $10,000,  where  nmst 
he  bring  his  action  against  tlie  I'nitcd  States? 

115.  Section  24-20.  May  tlie  United  States  be  sued  in  the  dis- 
trict conrt  for  a  tort  or  for  a  w;ii'  cl.iini  rejected  or  reported  on 
adversely  ? 

116.  Section  24-20.  What  is  an  officer?  Wliat  is  a  fee  or  salary 
of  an  officer  of  the  United  States? 


Questionnaire  in  Federal  Procedure  677 

117.  Section  24-20.  What  is  a  set-off  or  eounterelaim  ?  May 
one  be  allowed  a  set-off  or  connterclaim  against  the  United  States? 

118.  Section  24-20.  Within  what  time  must  one  sue  under  this 
section?  What  disabilities  may  excuse?  May  the  disabilities  op- 
erate cumulatively? 

119.  Section  24-20.  When  does  one  have  a  contract  with  the 
United  States? 

120.  Section  24-20.  When  is  a  claim  founded  upon  a  regulation 
of  the  executive  department  ? 

121.  Section  24-20.  How  are  .suits  tried  under  this  section? 

122.  Section  24-21.  What  is  the  gist  of  the  statutes  which  are 
spoken  of  in  this  section? 

123.  Section  24-21.  If  A  has  color  of  title  under  this  statute,  is 
he  a  bona  tide  holder? 

124.  Section  24-22.  When  does  a  suit  arise  under  a  law  regulat- 
ing the  immigration  of  aliens,  or  the  contract  labor  laws  ? 

125.  Section  24-23.  When  does  a  suit  arise  under  a  law  to  pro- 
tect trade  and  commerce  against  restraints  and  monopolies? 

126.  Sections  26  and  27.  What  federal  district  courts  have 
original  jurisdiction  over  what  criminal  matters  arising  in  Yel- 
lowstone National  Park  and  the  Indian  reservations  in  South  Da- 
kota ? 

127.  Sections  25  and  26.  What  appellate  jurisdiction  have  the 
federal  district  courts? 


C.    Removal  of  Causes. 

Questions  128  through  152  are  on  section  28  of  the  Judicial 
Code. 

128.  Can  a  state  law  deprive  one  of  the  right  to  remove  a  case 
to  a  federal  court? 

129.  Is  a  state  law,  which  provides  that,  if  a  corporation  of  that 
state  removes  a  case  to  a  federal  court,  it  shall  lose  its  charter,  ef- 
fective ? 

130.  Is  an  agreement  not  to  remove  a  case  to  a  federal  court 
valid? 

131.  If  a  state  court  has  not  jurisdiction  of  a  case,  may  it  be  re- 
moved to  a  federal  court? 

132.  May  ancillary  matter  be  removed  after  the  decision  of 
the  main  case  has  been  rendered  in  a  state  court? 

133.  What  proceedings  in  this  relation  are  ancillary  ? 

134.  If  a  defendant  puts  in  an  answer  consisting  of  a  counter- 
claim, cross-complaint,  or  asking  for  an  injunction,  may  the  plain- 
tiff get  a  removal? 

135.  May  the  receiver  of  a  bank,  when  sued  in  a  state  court  on 
a  claim  of  less  than  $3,000,  remove  the  case  to  a  federal  court? 

136.  May  a  sham  party  prevent  a  removal  ? 

137.  What  must  be  done  to  show  a  party  has  been  fraudulently 
joined? 


678  Appendix 

138.  What,  in  general,  are  the  different  classes  of  eases  which 
may  be  removed  under  section  28  ? 

139.  What  amount  must  be  in  controversy  to  obtain  a  removal 
in  the  various  types  of  cases  which  are  removable? 

140.  Must  all  of  the  parties  plaintiff  be  citizens  of  states  other 
than  all  of  the  defendants? 

141.  Who  may  remove? 

142.  What  is  a  separable  controversy? 

143.  What  must  be  shown  to  obtain  a  removal  on  the  ground 
of  prejudice  or  local  influence  ? 

144.  May  a  citizen  of  a  territory,  the  District  of  Columbia,  or 
a  foreign  state  obtain  a  removal? 

145.  At  what  time  must  the  facts  exist  which  are  the  basis 
of  a  right  to  a  removal  in  order  to  permit  such  a  removal  ? 

146.  W^ithin  what  time  must  one  ask  for  a  removal  on  the 
ground  of  prejudice  or  local  influence  ? 

147.  What  court  does  one  ask  for  the  privilege  of  obtaining  a 
removal  on  the  ground  of  prejudice  or  local  influence? 

148.  What  must  one  do  to  obtain  a  removal  on  the  ground  of 
prejudice  or  local  influence? 

149.  Under  what  circumstances  may  a  case  removed  to  a  fed- 
eral court  on  the  grounds  of  prejudice  or  local  influence  be  re- 
manded entirely  or  in  part  to  the  state  court? 

150.  What  is  the  proper  method  of  having  the  case  remanded? 

151.  On  W'hose  initiative  is  a  case  remanded? 

152.  What  special  legislative  acts  are  referred  to  in  section  28 
and  what  is  the  law  of  removal  in  relation  thereto? 

Questions  153  through  165  are  on  section  29  of  the  Judicial  Code. 

153.  Within  what  time  must  a  removal  be  asked  for  under  sec- 
tion 29  ? 

154.  What  is  the  effect  of  treating  a  petition  for  removal  as  filed 
when  it  has  not  been? 

155.  Does  the  time  for  answering  expire  when  the  answer  is 
filed  ? 

156.  If  one  files  a  petition  for  a  removal  as  soon  as  the  case  is 
removable,  is  he  in  time? 

157.  Does  the  time  within  w^hich  one  must  file  a  petition  for  a 
removal  begin  to  run  until  a  valid  service  has  been  made  upon  the' 
defendant  ? 

158.  May  the  time  to  file  a  petition  for  a  removal  be  extended 
by  a  court  or  a  stipulation  by  the  parties? 

159.  What  papers  must  be  filed  and  notices  given  to  obtain  a 
removal  under  section  29? 

160.  What  must  be  the  forms  of  those  documents  and  when 
must  they  be  filed  and  given? 

161.  What  is  meant  by  "special  bail"? 

162.  What  court  decides  upon  the  right  to  the  removal  under 
section  29? 

163.  Is  the  more  filing  of  the  petition  in  the  office  of  the  clerk 
of  the  state  court  sufficient? 


Questionnaire  in  Federal  Procedure  G79 

164.  What  is  the  duty  of  the  state  court  upon  the  filing  of  a 
petition  and  bond  provided  for  in  section  29  ? 

165.  Sections  28  and  29.  To  what  federal  court  must  a  removal 
be  made? 

166.  If  the  court  remands  a  case,  is  the  action  of  the  court  re- 
viewable by  appeal  or  writ  of  error?  If  the  court  refuses  to  re- 
mand a  case,  is  its  action  reviewable  by  appeal  or  writ  of  error  ? 

Questions  167  through  175  are  on  section  30  of  the  Judicial  Code. 

167.  What  type  of  cases  is  removable  under  section  30? 

168.  Within  what  time  must  a  removal  be  requested? 

169.  What  amount  must  be  in  controversy? 

170.  Who  may  obtain  a  removal  ? 

171.  If  the  parties  are  citizens  of  different  states  may  they 
take  advantage  of  section  30? 

172.  What  is  the  method  of  obtaining  a  removal  under  sec- 
tion 30? 

173.  Before  what  court  is  the  request  for  a  removal  made? 

174.  To  what  court  is  the  removal  made? 

175.  What  effect  has  section  30  upon  the  offering  of  evidence 
and  pleading? 

Questions  176  through  187  are  on  section  31  of  the  Judicial  Code. 

176.  What  type  of  cases  is  removable  under  section  31? 

177.  Within  what  time  must  a  removal  be  requested? 

178.  What  amount  must  be  in  controversy  ? 

179.  Who  may  obtain  a  removal? 

180.  What  is  the  method  of  obtaining  a  removal  under  sec- 
tion 31  ? 

181.  Before  what  court  is  the  request  for  a  removal  made? 

182.  To  what  court  is  the  removal  made? 

183.  What  is  the  duty  of  the  state  court  after  the  filing  of  the 
proper  petition  by  the  right  person  ? 

184.  What  effect  has  a  removal  under  section  31  upon  bail  or 
other  security  given  in  the  case  removed  ? 

185.  What  duty  is  imposed  upon  the  clerk  of  the  state  court 
under  section  31? 

186.  If  the  removing  party  files  the  proper  papers,  what  is  the 
effect  upon  the  proceedings  ?  What  if  he  fails  to  do  so  without  any 
fault  of  the  clerk  of  the  state  court  ? 

187.  What  is  the  proper  procedure,  if  the  clerk  of  the  state 
court  fails  to  perform  his  duty  mentioned  in  question  185  ? 

188.  Section  32.  What  is  a  writ  of  habeas  corpus  cum  causa  ? 

189.  Section  32.  When  is  it  used  under  section  32. 

190.  Section  32.  What  is  the  procedure  used  in  issuing  such 
a  writ  ? 

Questions  191  through  202  are  on  section  33. 

191.  What  type  of  cases  is  removable  under  section  33  ? 

192.  When  is  one  appointed  under  or  acting  by  authority  of 
any  revenue  law? 

193.  Within  what  time  must  a  removal  be  requested? 

194.  What  amount  must  be  in  controversy  ? 


680  Appendix 

195.  Who  may  obtain  a  removal? 

196.  What  is  the  method  of  obtaining  a  removal  under  sec- 
tion 33  ? 

197.  Before  what  conrt  is  the  request  for  a  removal  made? 

198.  To  what  court  is  the  removal  made? 

199.  What  effect  has  a  removal  under  section  33  upon  bail  or 
other  security  given  in  the  case  removed  ? 

200.  When  a  suit  removed  under  section  33  is  begun  in  the 
state  court  by  process  other  than  capias  what  is  the  duty  of  the 
officers  of  the  federal  district  court,  and  of  the  state  court?  Is 
the  answer  the  same  when  it  is  begun  by  capias? 

201.  What  is  a  writ  of  certiorari  ? 

202.  If  no  copy  of  the  record  and  proceedings  in  the  state 
court  can  be  obtained  after  a  removal  has  been  perfected,  what  is 
the  proper  procedure?  What  if  the  plaintiff  fails  to  proceed  de 
tiovof 

203.  Section  34.  What  type  of  cases  is  removable  under  this 
section  ? 

204.  Section  34.  Who  may  obtain  a  removal,  and  within  what 
time  must  it  be  asked  for  ? 

205.  Section  34.  How  is  the  removal  obtained? 

206.  Section  34.    To  what  court  is  the  removal  made? 

207.  Section  35.  Under  this  section  what  is  the  procedure,  if 
the  clerk  of  the  state  court  improperly  refuses  to  deliver  papers? 
What  is  the  effect  of  such  refusal  upon  the  case? 

208.  Section  35.  What  could  the  removing  party  do  under  this 
section,  if  he  was  a  pauper  and  thus  unable  to  pay  the  clerk's  fees? 

209.  Section  36.  According  to  this  section,  what  is  the  effect 
of  a  removal  upon  attachments,  sequestrations,  bonds,  securities,  in- 
junctions, or  other  proceedings  obtained,  or  had  prior  to  the  re- 
moval ? 

210.  Section  36.  May  the  proceedings  had  in  the  state  court  be 
modified  by  the  federal  court  after  removal  ? 

211.  Section  37.  Under  Avhat  circumstances,  and  at  what  time, 
may  a  federal  court  dismiss  or  remand  a  case? 

212.  Upon  such  a  dismissal  or  remanding  who  pays  the  costs  of 
the  case  while  it  was  proceeding  in  the  federal  court? 


D.    Miscellaneous  Provisions. 

213.  Section  40.  Where  are  offenses  punishable  bv  death  tried? 

214.  Section  41.  What  are  Ihe  "high  seas"? 

215.  Section  41.  When  is  an  otTense  committed  upon  them? 

216.  Section   41.  What   is  meant  by  "state"  or  "district"  as 
used  in  Ihis  section  ? 

217.  Section   41.   HiKler  lliis  section  when   is  one  found  in   or 
bronglit  into  a  district? 

218.  Section    42.  Where    may    an    offense    against    the    United 
St atCH  be  t  ried  ? 


Questionnaire  in  Federal  Procedure  681 

219.  Section  43.  Where  may  pecuniary  penalties  and  forfei- 
tures be  sued  for? 

220.  Section  44.  Where  may  actions  to  recover  for  internal 
revenue  be  brought  ? 

221.  Section  45.  Where  may  proceedings  on  seizures  made  on 
the  high  seas  for  forfeiture  under  any  law  of  the  United  States  be 
prosecuted  ? 

222.  Section  46.  Where  may  procedings  for  the  condemnation 
of  property  used  to  promote  an  insurrection  against  the  United 
States  be  had? 

223.  Section  47.  Where  may  proceedings  on  seizures  for  for- 
feitures of  vessels  or  cargoes  entering  ports  of  entry  closed  by 
the  President  in  pursuance  of  law,  or  of  goods  and  chattels  coming 
from  a  state  or  section  declared  by  proclamation  of  the  Presi- 
dent to  be  in  insurrection  into  other  parts  of  the  United  States, 
or  of  any  vessel  or  vehicle  conveying  such  property  or  persons  to 
or  from  such  state  or  section,  or  of  any  vessel  belonging,  in  whole 
or  in  part,  to  any  inhabitant  of  such  state  or  section  ? 

224.  Section  48.  Where  may  suits  for  the  infringement  of  let- 
ters patent  be  had? 

225.  Section  48.  What  is  meant  by  a  "regular  and  established 
place  of  business"? 

226.  Section  48.  At  what  time  must  the  "regular  and  estab- 
lished place  of  business"  have  existed  in  the  district  where  the 
suit  is  brought  ? 

227.  Section  48.  Upon  whom  must  service  be  made  in  cases 
brought  under  this  section? 

228.  Section  49.  Where  must  proceedings  by  a  national  bank- 
ing association  to  enjoin  the  comptroller  of  currency  in  the  cases 
mentioned  in  this  section  be  brought? 

229.  Section  50.  If  all  the  defendants  are  not  inhabitants  of, 
or  found  in,  the  district  of  which  some  are  inhabitants,  or  within 
which  some  are  found,  may  the  latter  be  sued  without  joining  the 
former?  If  so,  what  is  the  effect  of  a  judgment  against  the  latter 
upon  the  rights  and  duties  of  the  former  ? 

230.  Section  51.  What  is  the  general  rule  as  to  the  right  to 
arrest  a  person  in  a  civil  action  in  a  district  other  than  the  one  in 
which  the  trial  is  to  be  had? 

231.  Section  51.  What  is  the  general  rule  as  to  the  district  with- 
in which  one  must  sue  another  in  a  federal  court  ? 

232.  Section  51.  May  this  rule  be  changed  by  statutes  dealing 
with  particular  matters? 

233.  Section  51.  May  there  be  a  removal  from  a  state  to  a  fed- 
eral court  of  a  ease  in  M^hich  there  are  several  plaintiffs,  citizens 
of  different  states,  and  the  action  is  brought  in  a  state  in  which 
one  of  the  plaintiffs  lives? 

234.  Section  51.  Who  may  object  to  the  fact  that  there  is  an 
improper  joinder  of  parties? 

235.  Section  51,  Does  this  section  apply  to  an  action  by  or 
against  an  alien? 


682  -  Appendix 

236.  Section  51.  Under  this  section  of  what  state  and  district  is 
a  corporation  an  inhabitant? 

237.  Section  51.  What  is  meant  by  "original  process  or  pro- 
ceeding"? 

238.  Section  51.  May  one  be  served  to  answer  a  supplemental 
bill  in  any  other  district  than  that  of  which  he  or  the  plaintiff  is  a 
resident  ? 

239.  Section  51.  Wliat  does  "only"  mean  as  used  in  this  sec- 
tion? 

240.  Section  51.  Is  the  right  to  be  sued  in  the  districts  named 
in  this  section  a  personal  right  which  may  be  waived  ?  If  so,  what 
amounts  to  a  waiver? 

241.  Sections  52-3-45.  When  are  actions  local,  and  when  are 
they  transitory  ? 

242.  Section  52.  Where  must  a  suit  not  of  a  local  nature  be 
brought,  if  there  is  but  one  defendant  and  the  state  in  which  the 
defendant  resides  contains  more  than  one  district?  What  if  there 
are  several  defendants  residing  in  different  districts? 

243.  Section  52.  How  is  service  made  if  there  are  several  de- 
fendants residing  in  different  districts  ? 

244.  Section  52.  If  there  is  a  judgment  or  decree  rendered 
upon  such  service  made  upon  several  defendants,  how  may  an  ex- 
ecution be  issued  ? 

245.  Section  53.  Where  must  a  suit  not  of  a  local  nature  be 
brought,  if  there  is  but  one  defendant  and  the  district  in  which 
the  defendant  resides  contains  several  divisions?  What  if  there 
are  several  defendants  residing  in  different  divisions  of  the  dis 
trict  ? 

246.  Section  53.  Where  may  all  process  subject  to  the  pro- 
visions of  this  section  be  served  and  executed  ? 

247.  Section  53.  In  what  divisions  are  alleged  criminals  to  be 
tried  ? 

248.  Section  53.  How  may  one  obtain  a  change  of  venue  of  a 
criminal  prosecution  from  one  division  to  another,  and  what  is 
the  effect  thereof? 

249.  Section  53.  To  wliat  division  are  removals  from  state  to 
federal  courts  made? 

250.  Section  53.  By  what  does  one  gauge  the  time  within  which 
such  a  removal  must  be  perfected? 

251.  Section  54.  May  the  defendant  in  a  local  action  be  served 
in  a  different  district  than  that  in  whicli  the  action  is  brouglit? 

252.  Section  55.  Where  m;iy  suits  of  a  local  nature  be  brought 
when  the  property  involved  lies  partly  in  one  district  and  parth^ 
in  another  district  within  the  same  state? 

253.  Sertlon  56.  If  a  receiver  is  appointed  to  care  for  property 
within  diffci-cnt  states,  but  within  tlie  same  circuit,  what  are  the 
conditions  nndcr  whidi  he  may  or  may  not  hav<i  control  of  all  of 
said  pro])crty  ? 

254.  Section  56.  TTpon  the  making  of  snch  an  appointment  what 


Questionnaire  in  Federal  Procedure  683 

fowor  is  p:iven  to  issue  process,  and  where  must  orders  affecting 
siu'h  property  be  entered  of  record? 

255.  Section  57.  How  are  suits  to  enforce  liens  upon,  or  claims 
to,  or  to  remove  incumbrances  or  clouds  upon  real  or  personal 
property,  proceeded  with  when  some  of  the  defendants  are  not  in- 
habitants of,  or  are  not  found  in,  the  district,  or  districts,  where 
the  land  lies  and  do  not  voluntarily  appear? 

256.  Section  57.  What  are  suits  ''to  enforce  a  claim,  or  to  re- 
move any  incumbrance  or  lien  or  cloud  upon  the  title  to"  prop- 
erty?   What  is  meant  by  "found"  as  used  in  this  section? 

257.  Section  57.  Wliat  is  the  effect  of  a  judgment  for  a  plain- 
tiff upon  a  non-resident  defendant  or  his  land  in  actions  mentioned 
in  question  255? 

258.  Section  57.  What  ma}^  he  do  after  such  a  judgment  is  ren- 
dered ? 

259.  Section  58.  May  a  civil  cause  be  transferred  from  a  federal 
court  in  one  division  of  a  district  to  another  federal  court  in  an- 
other division  of  the  same  district  ?    If  so,  how  is  it  done  ? 

260.  Section  59.  Whenever  any  new  district  or  division  is  estab- 
lished or  territory  is  transferred  from  one  district  or  division  to 
another  district  or  division,  where  shall  prosecutions  for  acts  com- 
mitted before  the  change  in  territory  effected  by  the  change  be 
tried,  and  where  shall  civil  suits  begun  before  the  change  in  ter- 
ritory effected  by  the  change  be  tried  ? 

2G1.  Section  59.  If  there  is  a  transfer  of  the  prosecution  or 
civil  action  from  one  federal  court  to  another  federal  court,  how 
is  it  made  ? 

262.  Section  60.  What  is  the  effect  of  the  creation  of  a  new  dis- 
trict or  division,  or  the  transfer  of  any  territory  from  one  district 
or  division  to  another  district  or  division  upon  liens  previously  ac- 
quired on  property  within  territory  effected  by  the  change  ? 

263.  Section  60.  What  provision  is  made  in  this  section  for 
filing  a  record  of  such  liens  in  the  court  within  whose  territorial 
jurisdiction  the  property  effected  by  the  lien  lies  after  the  trans- 
fer of  territory  mentioned  in  question  262?  What  is  the  effect  of 
such  filing? 

264.  Section  61.  May  district  judges  appoint  commissioners 
before  whom  appraisers  of  vessels,  or  goods  and  merchandise 
seized  for  breaches  of  any  law  of  the  United  States,  may  be  sworn? 
If  so,  how  effectual  is  such  an  oath? 

265.  Section  62.  When  a  territory  is  admitted  as  a  state  and 
a  district  court  is  established  therein,  what  is  done  with  the  records 
of  the  cases  pending  in  the  highest  court  of  the  territory  at  the 
time  of  said  admission,  or  which  had  already  been  tried  therein  ? 

266.  Section  63.  What  is  the  duty  of  the  judge  of  the  federal 
district  court  and  of  the  clerk  of  the  territorial  court  in  such  a 
case?  How  may  the  clerk's  duty  be  enforced,  if  he  is  unwilling  to 
perform  it? 

267.  When  a  territory  is  admitted  as  a  state  and  a  federal  dis- 
trict court  is  established  therein,  of  what  cases  pending  in  the  trial 


684  Appexdix 

courts  of  the  territory"  does  the  federal  court  take  cognizance,  hear 
and  determine? 

268.  Section  65.  In  what  manner  shall  receivers  or  managers 
appointed  to  care  for  property-  involved  in  a  suit  pending  before 
any  court  of  the  United  States  manage  the  property  ? 

269.  Section  66.  ^lay  such  a  receiver  or  manager  be  sued  with- 
out the  previous  leave  of  the  court  in  which  he  was  appointed  ?  If 
so,  has  the  court  appointing  him  any  control  over  such  a  suit  ? 

270.  Section  67.  ]\Iay  every  person  be  appointed  to  or  employed 
in  any  office  or  duty  of  a  federal  court  ? 

271.  Section  67.  Does  the  fact  that  the  judge  making  the  ap- 
pointment has  decided  that  the  same  is  properly  made  have  any 
bearing  upon  the  fact  as  to  whether  or  not  the  appointment  is 
valid '? 

272.  Under  what  circumstance.s  may  a  clerk  or  deputy  clerk  of 
a  federal  district  court  be  appointed  as  a  receiver  or  master  in 
any  ease  in  such  court  ? 

III. 

CIRCUIT  COURT  OF  APPEALS. 

273.  Section  116.  How  many  judicial  circuits  are  there  in  the 
United  States  ? 

274.  Section  116.  What  districts  are  included  in  each  ? 

275.  Section  117.  How  many  judges  sit  in  each  circuit  court  of 
appeals?     How  many  of  these  constitute  a  quorum? 

276.  Section  117.  Is  this  court  one  of  record  ? 

277.  Section  118.  What  is  the  salary  of  circuit  judges? 

278.  Section  118.  What  are  the  duties  of  circuit  judges? 

279.  Section  119.  Do  the  justices  of  the  Supreme  Court  ever  sit 
as  judges  of  the  circuit  courts  of  appeals?  If  so,  who  decides 
over  what  courts  they  shall  sit? 

280.  Section  120.  Who  presides  over  the  circuit  courts  of  ap- 
peals ? 

281.  Do  judges  of  the  federal  district  courts  ever  act  as  judges 
of  the  circuit  courts  of  appeals? 

282.  Section  121.  What  is  meant  by  "circuit  justice"  and 
"justice  of  a  circuit,"  and  what  does  the  word  "judge"  include, 
as  these  terms  are  used  in  the  chapter  on  Circuit  Courts  of  Appeals 
in  the  Judicial  Code? 

283.  Section  122.  What  powers  has  each  circuit  court  of  ap- 
peals in  relation  to  the  prescribing  of  the  form  of  its  seal,  the 
form  of  writs  and  other  process  and  procedure,  and  the  establish- 
ment of  rules  of  courts? 

284.  Sections  123-127.  What  are  the  powers  of  the  United 
States  marshals  for  the  districts  of  the  circuit  courts  of  appeals  in 
relation  to  these  courts? 

285.  Section  124.  Who  appoints  the  clorks  of  circuit  courts  of 
appeals  and  what  are  the  jjowcrs  and  duties  of  said  clci-ks? 


Questionnaire  in  Federal  Procedure  685 

286.  Section  125.  How  are  deputy  clerks  of  the  circuit  courts 
of  appeals  appointed  and  removed? 

287.  Section  125.  Who  takes  the  place  of  the  clerk  of  a  circuit 
court  of  appeals  in  case  of  his  death  ? 

288.  Section  125.  What  liabilities  does  such  a  clerk's  bond 
cover  ? 

289.  Section  125.  What  recourse  has  such  a  clerk  or  his  repre- 
sentative after  his  death,  when  he,  or  his  representative,  pays 
for  losses  occasioned  by  the  default  of  a  deputy  clerk  ? 

Questions  290  through  295  deal  with  section  128  of  the  Judicial 
Code. 

290.  What  are  appeals  and  writs  of  error? 

291.  When  is  the  decision  of  the  federal  district  court  final  ? 

292.  Does  the  circuit  court  of  appeals  ever  have  jurisdiction 
over  a  case  in  which  a  question  of  jurisdiction,  or  the  construction 
or  application  of  the  Constitution  of  the  United  States  is  raised? 

293.  What  is  meant  by  "unless  otherwise  provided  by  law"  as 
used  in  section  128  ? 

294.  When  is  the  jurisdiction  of  a  federal  court  dependent  en- 
tirely upon  diversity  of  citizenship  ? 

295.  In  what  cases  is  the  decision  of  the  circuit  court  of  ap- 
peals final  ? 

296.  What  is  meant  by  "hearing  in  equity"  as  used  in  section 
129? 

297.  What  is  meant  by  "an  interlocutory  order  or  decree"  as 
used  in  section  129? 

298.  Within  what  time  must  the  appeal  mentioned  in  section 
129  be  taken  ? 

299.  When  the  appeal  provided  for  in  section  129  is  taken, 
must  a  bond  be  provided  ? 

300.  Does  the  granting  or  the  dissolution  of  an  interlocutory 
injunction  rest  in  the  discretion  of  the  court  of  original  jurisdic- 
tion, or  that  of  the  appellate  court? 

301.  May  the  circuit  court  of  appeals  decide  the  whole  case 
when  the  appeal  to  it  which  is  provided  for  in  section  129  is  taken  ? 

302.  What  effect  on  the  proceedings  in  the  lower  court  has  such 
an  appeal  ? 

303.  Section  130.  In  what  cases,  generally,  has  the  circuit  court 
of  appeals  jurisdiction  in  bankruptcy  cases? 

304.  Section  130.  Is  there  any  distinction  between  contro- 
versies arising  in  bankruptcy  proceedings  and  proceedings  in  bank- 
ruptcy ? 

305.  Sections  131  and  134.  What  circuit  court  of  appeals  is 
empowered  to  hear  and  determine  writs  of  error  and  appeals  from 
the  United  States  Court  for  China,  and  from  the  federal  district 
court  for  Alaska  ? 

306.  Sections  131  and  134.  May  an^^  case  be  brought  from  those 
courts  to  the  circuit  court  of  appeals? 

307.  Section  131.  In  relation  to  the  cases  coming  from  the 
federal  district  court  of  Alaska,  may  the  circuit  court  of  appeals 


686  Appendix 

certify  any  question  to  the  Supreme  Court  of  the  United  States? 
Where  are  those  cases  heard  ? 

IV. 

SUPKEME  COURT. 

308.  Section  215.  Of  how  many  judges  does  the  supreme  court 
consist  ? 

309.  Section  215.  How  many  judges  thereof  constitute  a 
quorum  ? 

310.  Section  216.  How  is  the  precedence  of  the  judges  of  the 
supreme  court  determined? 

311.  Section  217.  Upon  whom  devolves  the  duties  and  powers 
of  the  office  of  chief  justice,  when  that  office  becomes  vacant,  or  the 
chief  justice  is  unable  to  perform  his  duties  and  powers? 

312.  Section  218.  What  is  the  salary  of  the  judges  of  the  su- 
preme court  ? 

313.  Section  220.  What  kind  of  a  bond  must  'he  clerk  of  the 
supreme  court  give?  Under  what  circumstances  may  a  change  in 
his  bond  be  required?  Where  must  the  bond  be  recorded  and 
filed? 

314.  Section  221.  How  are  deputj^  clerks  of  the  supreme  court 
appointed  and  removed? 

315.  Section  221.  Who  takes  the  place  of  the  clerk  of  the  su- 
preme court  in  the  case  of  his  death? 

316.  Section  221.  What  liabilities  does  such  a  clerk's  bond 
cover? 

317.  Section  221.  What  recourse  has  such  a  clerk,  or  his  rep- 
resentative after  his  death,  when  he,  or  his  representative,  pays 
for  losses  occasioned  by  the  default  of  a  deputy  clerk? 

318.  Section  224.  What  are  the  salary,  powers,  and  duties  of 
the  marshal  of  the  supreme  court  ? 

319.  Section  230.  How  many  terms  of  court  shall  the  supreme 
court  hold,  and  when  shall  they  be  held? 

320.  Section  231,  What  is  the  procedure  when  there  is  not  a 
quorum  of  the  supreme  court? 

321.  Section  232.  What  orders  may  judges  of  the  supreme  court 
make  while  Ihe  court  is  adjourned  until  there  sliall  be  a  quorum? 

322.  Section  233.  Tn  what  cases  has  the  supreme  court  ex- 
elusive,  or  original  jui'isdiclion  ? 

323.  Section  233.  Whal  is  meant  liy  "public  minister"? 

324.  Section  234.  When  may  the  supreme  court  issue  a  wril 
of  prohibition  or  a  writ  of  mandamus? 

325.  Section  234.  What  is  a  wiit  of  prohibition,  a  writ  of  man- 
damus? 

32G.  Section  2;'>5.  How  are  issues  of  fact  tried  in  the  supreme 
court  ? 

327.  Section  235.  What  is  lucaiit  by  a  trial  by  jury? 

328.  Section  237.  What  is  the  general  iiile  as  to  the  cases  which 


Questionnaire  in  Federal  Procedure  687 

may  be  taken  from  a  state  court  to  tlic  supreme  court  of  the  United 
States? 

329.  Section  237.  What  is  meant  by  "the  highest  court  of  a 
state"? 

330.  Section  237.  When  is  a  judgment  or  decree  of  a  state  court 
final? 

331.  Section  237.  When  is  drawn  in  question  the  validity  of  a 
treaty  or  statute  of  the  United  States,  etc.  ? 

332.  Section  237.  Wlien  is  a  writ  of  error,  and  when  is  a  writ 
of  certiorari,  used  under  this  section. 

333.  Section  237.  What  are  writs  of  error  and  writs  of  cer- 
tiorari?   May  one  obtain  them  as  of  right? 

334.  Section  237.  What  is  meant  by  "or  otherwise"? 

335.  Section  239.  Under  what  circumstances  may  appeals  and 
writs  of  error  be  taken  from  the  federal  district  courts  directly  to 
the  supreme  court? 

336.  Section  239.  What  kinds  of  questions  may  be  certified  to 
the  supreme  court  hy  the  circuit  court  of  appeals? 

337.  Section  239,  May  more  than  one  such  question  be  certified 
at  the  same  time  ? 

338.  Section  239.  Is  a  certification  by  less  than  a  quorum  of 
the  judges  of  a  circuit  court  of  appeals  valid? 

339.  Section  239.  lias  a  party  a  right  to  demand  a  certification  ? 

340.  Section  239.  May  a  question  of  law,  which  has  already 
been  decided  b}^  the  supreme  court,  be  certified  to  it  ?  What  if  the 
question  was  decided  by  an  equally  divided  court  ? 

341.  Section  239.  Under  this  section  how  much  of  the  case  may 
be  passed  upon  by  the  supreme  court  in  case  of  a  certification  ? 

342.  Section  240.  In  what  instances,  within  what  time,  and  by 
what  means,  may  the  supreme  court  order  a  case  to  be  certified  to 
it? 

343.  Section  240.  In  case  of  such  a  certification,  what  is  the 
power  of  the  supreme  court  in  relation  to  the  case  certified  ? 

344.  Section  241.  In  w^hat  instances,  and  within  what  time, 
may  there  be  an  appeal  or  wa'it  of  error  from  a  circuit  court  of 
appeals  to  the  supreme  court?  ]\Iay  there  be  one  from  an  inter- 
locutory order  of  the  circuit  court  of  appeals  ? 

345.  Section  242.  In  what  cases  may  there  be  an  appeal  from 
the  court  of  claims  to  the  supreme  court? 

346.  Section  243.  Within  what  time  must  such  appeals  from  the 
court  of  claims  be  taken? 

347.  Sections  244-246-247.  In  what  cases,  within  what  time, 
and  how,  may  writs  of  error  or  appeals  be  taken  from  the  supreme 
court  of,  and  the  United  States  District  Court  for,  Porto  Rico,  the 
Supreme  Court  of  Hawaii,  and  the  federal  District  Court  of 
Alaska  ? 

348.  Section  246,  In  what  cases  may  writs  of  error  and  ap- 
peals be  taken  from  the  supreme  courts  of  Hawaii  and  Porto  Rico 
to  the  circuit  courts  of  appeals? 

349.  Section  248.  In  what  instances,  within  what  time,  and  in 


688  Appendix 

what  manner,  may  judgments  and  decrees  of  the  Supreme  Court  of 
the  Philippine  Islands  he  reviewed,  etc.,  by  the  supreme  court? 

350.  Section  250.  In  what  instances,  within  what  time,  and  in 
what  manner,  may  .iudgments  and  decrees  of  the  Court  of  Appeals 
of  the  District  of  Columbia  be  reviewed,  etc.,  by  the  supreme  court 
upon  writ  o£  error  or  appeal  ? 

351.  Sections  250  and  251.  "What  decisions  of  the  Court  of  Ap- 
peals of  the  District  of  Columbia  are  final;  In  those  instances 
how  may  the  decisions  be  reviewed,  etc.,  by  the  supreme  court,  and 
Avhat  is  the  power  of  the  supreme  court  in  such  cases  ? 

352.  Sections  252.  What  jurisdiction  has  the  supreme  court 
over  matters  relating  to  bankruptcy,  and  how  is  it  exercised? 

353.  Section  253.  "What  precedence  is  given  criminal  cases  in 
the  supreme  court? 

354.  Section  254.  "Who  pays  the  cost  of  printing  the  record  in 
cases  pending  in  the  supreme  court  ? 

355.  Section  255.  May  women  practice  before  the  supreme 
court? 

V. 

COURT  OF  CLAIMS. 

356.  Section  136.  How  many  judges  constitute  the  court  of 
claims,  how  are  they  appointed,  for  what  period  do  they  hold  their 
office,  what  oath  must  thej^  take,  and  what  is  their  salary? 

357.  Section  138.  How  many  sessions  must  the  court  of  claims 
hold  annually,  what  is  the  length  of  their  sessions,  where  must 
their  sessions  be  held,  what  is  a  quorum  of  the  court,  and  how  many 
judges  must  concur  to  reach  an  effective  decision  ? 

358.  Section  144.  May  members  of  congress,  or  resident  com- 
missioners, during  their  continuance  in  office  practice  in  the  court 
of  claims? 

359.  Sections  145,  153  and  162.  Of  what  cases  does  the  court 
of  claims  have  jurisdiction? 

360.  Section  146.  "What  is  the  procedure  when  the  United 
States  sets  up  any  set  oflP,  counterclaim,  claims  for  damages,  or 
other  demand? 

361.  Sections  148,  149  and  151.  What  part  may  the  court 
of  claims  be  called  upon  to  play  in  relation  to  claims  pending 
against  tho  fedoi'al  government  in  congress  or  the  various  executive 
departments? 

362.  Section  154.  What  limit  is  there  to  the  right  to  file  or  pros- 
ecute in  the  court  of  claims  or  supreme  coui-t  any  claim  against 
one,  who,  at  the  time  the  claim  arose,  was  acting  or  professing  to 
act  under  the  authority  of  the  United  States? 

363.  Section  155.  What  aliens  may  prosecute  claims  against  the 
United  States  in  tlie  court  of  chiims? 

:U)1.  Sr-ction  156.  What  is  the  statnte  of  limilalions  as  to  ac- 
tions brouglit  in  tlie  conrf  (if  claims? 


Questionnaire  in  Federal  Procedure  689 

365.  Soction  157.  To  what  extent  may  the  court  of  claims 
punish  for  contempt? 

366.  Section  159.  What  must  be  set  forth  in  petitions  filed  in 
the  court  of  claims? 

367.  Section  160.  What  of  those  allegations  may  be  traversed 
by  the  United  States  ?  What  is  the  result  of  finding  for  the  United 
States  on  those  issues? 

368.  Section  161.  Who  has  the  burden  of  proving  the  loyalty 
or  disloyalty  of  anyone  to  the  United  States  during  the  civil  war 
when  that  is  an  issue  ? 

369.  Section  164.  What  right  has  the  court  of  claims  to  ob- 
tain information  or  papers  from  departments  of  the  federal  gov- 
ernment ? 

370.  Section  165.  What  is  the  proper  procedure  in  the  court  of 
claims  when  it  appears  to  the  court  that  the  facts  set  forth  in  the 
petition  furnish  no  ground  for  relief? 

371.  Section  166.  When  may  a  claimant  be  directed  by  the 
court  of  claims  to  appear  before  a  commissioner,  and  what  is  the 
result  if  he  fails,  upon  reasonable  notice,  to  do  so? 

372.  Section  167.  Where  must  testimony  be  taken  in  cases  pend- 
ing before  the  court  of  claims  ? 

373.  Section  168.  What  power  has  the  court  of  claims  to  re- 
quii^e  witnesses  to  appear  before  it  ? 

374.  Section  169.  When  may  the  court  of  claims  allow  the  filing 
of  interrogatories? 

375.  Sections  172,  173  and  184.  What  is  the  effect  upon  one's 
right  against  the  government  if  he  commits  a  fraud  in  presenting 
his  claim? 

376.  Sections  174  and  175.  When  may  a  new  trial  be  granted 
by  the  court  of  claims  ? 

377.  Sections  180  and  181.  What  may  one,  who  wants  to  settle 
his  accounts  with  the  United  States,  do  after  application  for  an 
accounting  to  the  proper  departmental  head?  How  long  after 
judgment  is  rendered  by  the  United  States  may  the  federal  govern- 
ment collect  on  the  judgment  ? 

378.  Sections  181  and  182.  Under  what  circumstances,  and 
within  what  time,  has  one  the  right  to  appeal  from  the  judgment 
of  the  court  of  claims? 

379.  Section  184.  In  cases  of  claims  for  supplies  taken  by,  or 
furnished  to,  the  military  or  naval  forces  of  the  United  States  in 
the  civil  war  what  must  the  petitioner  aver? 

380.  Section  186.  May  persons  of  any  color,  and  parties  to  or 
interested  in  a  cause  or  proceeding  in  the  court  of  claims  be  wit- 
nesses therein? 

VI. 

THE  COURT  OF  CUSTOMS  APPEALS. 

381.  Section  188.  Of  how  many  judges  does  the  court  of  cus- 
toms appeals  consist,  how  are  thcv  appointed,  what  is  their  salary, 

Wheaton  C.  F.  P.— 44 


690  Appendix 

how  is  the  presiding  judge  determined,  how  many  judges  con- 
stitute a  quorum,  and  how  many  must  concur  to  render  an  ef- 
fective decision? 

382.  Section  188.  In  case  of  a  vacancy,  or  temporary  inability 
or  disqualification  of  one  or  two  judges  of  the  court,  what  ma^^  be 
done  ? 

383.  Section  189.  When  and  where  are  sessions  of  the  court  of 
claims  held? 

384.  Sections  195,  196,  197  and  198.  In  what  cases  has  the 
court  of  customs  appeals  jurisdiction? 

385.  Sections  195  and  196.  How,  and  when,  may  cases  tried  be- 
fore the  court  of  customs  appeals  be  certified  to  the  supreme  court  ? 

386.  Section  198.  If  an  importer,  owner,  consignee,  or  agent  of 
any  imported  merchandise,  or  the  collector  or  secretary  of  the 
treasury,  shall  be  dissatisfied  with  the  decision  of  the  board  of 
general  appraisers  as  to  the  construction  of  the  law  and  the  facts 
respecting  the  classification  of  such  merchandise  and  the  rate  of 
duty  imposed  thereon  under  such  classification,  or  with  any  other 
appealable  decision  of  said  board,  what  may  they,  or  either  of 
them  do,  and  when  and  how  may  it  be  done  ? 


VII. 

PROVISIONS  COMMON  TO  MORE  THAN  ONE  COURT. 

387.  Section  256.  In  what  cases  have  the  courts  of  the  United 
States  exclusive  jurisdiction?" 

388.  Section  258.  May  any  judge  of  the  United  States  practice 
law  while  he  holds  that  position? 

389.  Section  261.  \Yhat  is  a  writ  of  ne  exeat?  When,  and  by 
whom,  may  it  be  issued? 

390.  Section  262.  What  is  a  writ  of  scire  facias?  When  and 
by  whom  may  it  be  issued  ? 

391.  Section  262.  What  general  power,  is  given  by  this  section 
to  the  supreme  and  district  courts  of  the  United  States  to  issue 
writs  ? 

392.  Section  263.  Under  what  circumstances  may  restraining 
orders  be  granted  by  a  federal  district  court  ?  What  is  the  dura- 
tion of  such  orders?  ]\Iay  security  be  demanded  of  the  one  ob- 
taining such  an  order? 

393.  Sections  264  and  265.  Under  what  circumstance,  and 
where,  general!}',  may  writs  of  injunction  or  restraining  orders  be 
granted  by  judges  of  the  federal  courts?  What  effect  have  they 
upon  the  i)roceedings? 

394.  Section  266.  What  special  provisions  are  made  as  to  in- 
tcrhjfutory  injnnctions  in  relation  to  the  cnfoi'cement  of  state 
s1;if ntcs,  etc.? 

395.  Section  267.  If  liicre  is  an  adcqnai(>  remedy  at  law,  may 
suits  in  equity  be  brought  in  the  federal  courts? 


Questionnaire  in  Federal  Procedure  G91 

396.  Section  268.  AVhat  power  have  the  federal  courts  to  pun- 
ish for  contempts? 

397.  Section  268.  What  is  meant  hy  "in  their  presence"  as 
used  in  this  section? 

398.  Section  269.  When  may  federal  courts  grant  new  trials? 

399.  Section  270.  Who  may  hold  persons  to  security  in  cases 
arising  under  the  constitution  and  laws  of  tlie  United  States? 

400.  Section  271.  What  power  have  federal  district  courts  and 
United  States  commissioners  in  relation  to  awards  of  consuls,  vice 
consuls,  or  commercial  agents  of  foreign  nations  having  to  do  with 
differences  between  captains  and  crews  of  vessels  belonging  to  the 
foreign  nation  whose  interests  are  committed  to  his  charge? 

401.  Section  272.  By  whom  may  parties  present  their  cases  in 
federal  courts  ? 

402.  Sections  273  and  274.  May  clerks  or  marshals  of  territorial 
or  federal  courts  act  as  attorneys? 

403.  Section  274-a.  What  is  the  effect  of  bringing,  and  what 
may  be  done,  if  one  brings  in  a  federal  court  an  action  in  equity, 
which  should  have  been  brought  in  law  ? 

404.  Section  274-b.  How  are  equitable  defenses  interposed  in  a 
federal  court,  and  what  is  their  effect  when  thus  presented  ? 

405.  Section  274b.  When  is  a  replication  filed  in  cases  brought 
in  federal  courts? 

406.  Section  274-b.  How  is  a  judgment  or  decree  reviewed  by 
federal  courts  in  cases  in  which  affirmative  relief  is  asked  for  in 
a  replication?  What  type  of  judgment  may  be  rendered  by  the 
appellate  court? 

407.  Section  274c.  To  what  extent  may  amendments  be  made 
to  show  diversity  of  citizenship,  upon  which  one  bases  his  right  to 
get  into  the  federal  court  ? 

VIII. 

JURIES. 

408.  Section  275.  What  qualifications  must,  and  exemptions 
do,  federal  jurors  have? 

409.  Sections  276  and  277,  How,  and  from  where,  are  federal 
jurors  drawn? 

410.  Section  278.  May  one  be  disqualified  from  serving  as  a 
federal  juror  on  account  of  race,  color,*  or  previous  condition  of 
servitude  ? 

411.  Section  279.  What  are  writs  of  venire  facias  mentioned  in 
this  section  ?    How  are  they  served  ? 

412.  Section  280.  If  from  among  the  persons  called  to  be  jurors 
on  a  federal  jury,  enough  are  not  found  to  complete  a  petit  jury, 
how  is  the  jury  completed? 

413.  Section  281.  How  are  special  juries  returned? 

414.  Section  282.  How  many  persons  constitute  a  gi-and  jury? 

415.  Section  282.  If,  for  any  reason,  the  necessary  number  of 


692  Appendix 

persons  to  complete  a  grand  jury  is  not  present,  what  is  the  proper 
procedure  ? 

416.  Section  283.  What  powers  has  the  foreman  of  a  federal 
grand  jury,  and  who  chooses  him? 

417.  Section  284.  When,  and  by  %vhom,  are  federal  grand  juries 
summoned  ? 

418.  Section  284.  Does  this  section  extend  the  time  which  one 
may  be  imprisoned  or  held  under  recognizance  before  indictment 
found  ? 

419.  May  lederal  district  courts  for  states,  district  courts  for 
territories,  and  the  Supreme  Court  of  the  District  of  Columbia  dis- 
charge their,  grand  juries  at  their  discretion? 

420.  Section  286.  How  long  is  it  one's  dutj^  to  serve  as  a  petit 
juror  ?  If  one  has  served  that  length  of  time,  may  he  be  challenged 
on  that  ground? 

421.  Section  287.  How  many  peremptory  challenges  have  the 
parties  to  actions  in  federal  courts? 

422.  Section  288.  In  prosecutions  for  bigamy,  polygamy,  or 
unlawful  cohabitation,  on  what  special  ground  may  jurors  be 
challenged  ?  How  are  the  facts  on  which  such  challenges  are  based 
proven  ? 

IX. 

CONCURRENT  JURISDICTION. 

423.  If  a  state  court  has  obtained  jurisdiction  over  an  action, 
may  a  federal  court  thereafter  try  the  same  questions  between  tlie 
same  parties,  no  res  being  involved? 

424.  Is  the  answer  the  same  if  a  res  is  involved,  the  state  court 
having  first  obtained  possession  thereof? 

425.  When  does  a  court  have  possession  of  a  res? 


EQUITY  RULES. 

426.  Rule  1.  F«or  what  purposes  are  the  district  courts  as  courts 
of  equity  considered  always  open  ? 

427.  Rule  1.  When  may  a  district  judge  not  sitting  in  court 
in  term  make,  direct,  and  award,  commissions,  etc.,  not  grantable 
of  course? 

428.  Rule  2.  When  is  the  clerk's  office  open  to  receive  and  dis- 
pose of  motions,  etc.,  which  are  grantable  of  course? 

429.  Rule  3.  What  are  the  "Equity  Docket,"  "Order  Book," 
and  "E(inity  Journal"? 

4:U).  Rule  4.  What  is  insufficient,  and  what  is  sufficient,  notice 
of  an  ordci-? 

l;il.  Itnle  f).  What  motions  and  applications  are  grantable  of 
(•(jursc  by  tlic  clei-k?  By  whom  and  npon  wlial  procednrc  may  they 
be  susjjcndcd,  alh-red,  or  rescinded? 


Questionnaire  in  Federal  Procedure  G93 

432.  Rule  6.  What  provisions  for  motion  days  are  made  by  the 
Equity  Rules  ? 

433.  Rules  7,  8  and  9.  When  are  subpoenas,  writs  of  execution, 
writs  of  attachment,  writs  of  sequestration,  and  writs  of  assistance 
used  in  equity  cases  ? 

434.  Rule  8.  Upon  what  condition  will  one  be  released  from  a 
writ  of  attachment  ? 

435.  Rule  8.  When  may  a  court  direct  an  act  to  be  done  by  an- 
other person  for  one  originally  ordered  to  do  it  ? 

436.  Rule  10.  May  deficiency  decrees  in  foreclosure  proceed- 
ing be  made  by  an  equity  court  ?     If  so,  how  are  they  enforced  ? 

437.  Rule  11.  May  relief  be  had  in  behalf  of,  or  against,  per- 
sons not  parties  to  an  equity  suit  ? 

438.  Rule  12,  When  are  subpoenas  issued,  what  must  one  do  to 
have  them  issued,  what  must  they  set  forth,  and  how  many  sub- 
poenas are  issued  when  there  is  more  than  one  defendant? 

439.  Rule  13.     How  are  subpoenas  served? 

440.  Rule  14,  What  is  an  alias  subpoena,  and  when  is  one  en- 
titled to  it  ? 

441.  Rule  15.  By  whom  is  every  process  served  ? 

.   442.     Rule  16.  When  must  one  answer,  where  must  he  file  his 
answer,  and  what  is  the  effect  of  failing  to  answer  ? 

443.  Rule  17.  When  a  bill  is  taken  pro  eonfesso,  how  may  a 
final  decree  be  obtained? 

444.  Rule  17.  If  a  bill  is  taken  pro  eonfesso,  what  may  the  de- 
fendant do  to  prevent  a  final  decree  being  made? 

445.  Rule  18.  Do  technical  forms  of  pleading  still  prevail  in 
equity  ? 

446.  Rules  19,  28  and  34.  May  one  amend  a  process,  proceed- 
ing, or  pleading,  or  file  a  supplemental  pleading? 

447.  Rule  20.  When  may  one  be  ordered  to  make  a  further  or 
more  particular  stalorapnt  of  his  pleadings? 

448.  Rule  21.  Ilrtw  may  one  get  scandalous  or  impertinent 
matter  stricken  from  bills,  answers,  or  other  proceedings? 

449.  Rule  22.  When  may  one  have  a  case  transferred  from  the 
equity  to  the  law  side  of  the  federal  district  court  ? 

450.  Rule  23.  May  matters  determinable  at  law  arising  in  an 
equity  suit  be  determined  in  that  suit? 

451.  Rule  24.  Must  pleadings  be  signed  by  counsel?  What  is 
the  import  of  the  signature  of  counsel  to  a  pleading? 

452.  Rule  25.  What  must  a  bill  in  equity  contain? 

453.  Rule  26.  When  may  causes  of  action  be  joined?  When 
they  are  joined,  may  the  court  ever  order  separate  trials? 

454.  Rule  27.  When  may  a  stockholder's  bill  be  brought,  and 
what  must  be  alleged  therein? 

455.  Rule  28.  When  may  one  amend  his  bill  as  of  right  ?  What 
must  he  do  if  he  amends  after  any  copy  has  issued  from  the  clerk's 
olfice?  What  is  the  procedure  if  any  defendant  has  filed  a  plead- 
ing? 

456.  Rule  29,  How  does  one  take  advantage  of  defects  of  law 


G94  Appendix 

arising  on  the  face  of  the  bill?    How  does  one  take  advantage  of 
a  defense  not  arising  on  the  face  of  a  bill? 

457.  Rule  30.  What,  in  general,  should  be  the  form  of  an  an- 
swer ? 

458.  Rule  30.  May  an  answer  contain  more  than  one  defense? 
If  so,  must  the  defenses  be  consistent? 

459.  Rule  30.  When  are  averments  of  a  bill,  which  are  not  de- 
nied, deemed  confessed?    How  may  this  result  be  obviated? 

460.  Rule  31.  Under  what  circumstances,  and  within  what  time 
must  a  replj^  be  made  ? 

461.  Rule  31.  What  must  the  defendant  do,  if  his  set-off  or 
counterclaim  effects  the  rights  of  defendants? 

462.  Rule  31.  What  is  the  result,  if  one  fails  to  reply  to  a 
counterclaim  ? 

463.  Rule  32.  What  is  the  proper  procedure  for  the  defendant, 
if  a  bill  is  amended  after  answer  filed? 

464.  Rule  33.  How  may  the  insufficiency  of  an  affirmative  de- 
fense, set-off,  or  counter-claim,  be  taken  advantage  of? 

465.  Rule  33.  If  the  defendant's  pleading  is  found  to  be  in- 
sufficient, may  it  be  amended  ? 

466.  Rule  34.  What  may  be  alleged  in  a  supplemental  plead- 
ing? 

467.  Rule  35.  Need  one  set  forth  any  of  the  statements  in  the 
original  suit  in  bills  of  revivor  or  supplemental  bills  ? 

468.  Rule  36.  Who  may  verify  pleadings  required  by  statute  to 
be  sworn  to? 

469.  Rule  37.  Who  must  or  may  be  made  or  become  a  party 
to  a  suit?  Who  must  be  joined  as  plaintiffs  or  defendants?  What 
may  be  done  when  one  who  must  join  refuses  to? 

470.  Rule  38.  When  may  one  sue  or  defend  for  others  than 
himself  ? 

471.  Rule  39.  May  the  court  proceed  though  all  proper  parties 
are  not  made  parties?    If  so,  what  is  the  effect  of  such  procedure? 

472.  Rule  40.  What  may  be  done  by  a  party  to  a  suit  against 
whom  no  dii'ect  relief  is  sought  ?  What  may  he  do,  if  he  is  re- 
quired to  appeal  and  answer? 

473.  Rule  41.  In  suits  to  execute  the  trusts  of  a  will,  when  is 
the  heir  at  law  made  a  party? 

474.  Rule  42.  Who  may  be  sued  when  one  has  a  joint  and 
sevei-al  demand  against  more  than  one  person? 

475.  Ixule  43.  Wiiat  is  the  proeedui-e  when  a  defendant  in  his 
answer  suggests  that  the  1)111  of  complaint  is  defective  for  want  of 
parties? 

476.  Kuh'  44.  What  if  the  suggestion  of  defect  of  parties  is 
made  at  llie  hearing? 

477.  Rule  45.  By  whom  and  in  what  manner  may  a  suit  be 
revived  in  ease  of  the  death  of  either  party  thereto? 

478.  Rule  46.  What  is  the  usual  method  of  producing  evidence 
in  a  suit  in  equity? 

479.  Rule  46.     What  is  the  jjroper  i)rocedure  to  bring  questions 


Questionnaire  in  Federal  Procedure  695 

of  admissibility  of  evidence  before  an  appellate  court  in  equity 
eases?  What  is  the  result,  if  the  appellate  court  holds  evidence 
admissible,  which  the  lower  court  has  rejected  as  being  improper? 

480.  Rules  47  and  49.  Under  what  circumstances,  within  what 
time,  and  in  what  manner,  may  depositions  be  taken  ? 

481.  Rule  48.  Under  what  circumstances,  within  what  time, 
and  in  what  manner,  may  the  testimony  of  expert  witnesses  in 
patent  and  trade-mark  cases  be  taken  ? 

482.  Rule  48.  What  is  the  result,  if  such  an  expert  fails  to 
appear  at  the  trial  to  be  cross  examined,  when  his  appearance  is 
desired  ? 

483.  Rule  49.  Must  evidence  offered  before  an  examiner  or 
other  similar  officer  be  returned  into  the  court? 

484.  Rule  50.  Who  must  pay  the  expenses  of  the  taking  down 
of  evidence  by  a  stenographer?    By  whom  are  the  costs  taxed? 

485.  Rule  51.  How  must  evidence  before  an  examiner  or  like 
ol¥icer  be  taken? 

486.  Rule  51.    How  are  objections  to  such  evidence  taken? 

487.  Rule  51.  Who  fixes  the  costs  of  incompetent,  immaterial, 
or  irrelevant  depositions,  and  who  pays  them? 

488.  Rule  52.  How  is  one  summoned  to  attend  as  a  witness 
before  a  commissioner,  master,  or  examiner?  What  is  the  proper 
procedure  if  he  fails  to  attend? 

489.  Rule  53.  What  notice  must  be  given  in  case  of  the  taking 
of  testimonj'  before  an  examiner  or  like  officer? 

490.  Rule  54.  When  may  depositions  be  taken  after  a  cause 
is  at  issue  ?    What  is  the  proper  procedure  of  doing  this  ? 

491.  Rule  55.    When  is  a  deposition  deemed  published? 

492.  Rule  56.  When  may  depositions  be  taken  after  a  case  is 
placed  on  the  trial  calendar? 

493.  Rule  56.  When  shall  a  case  be  placed  on  the  trail  calendar? 

494.  Rule  57.  When,  how,  and  for  how  long,  may  continuances 
be  allowed  ? 

495.  Rule  58.  Within  what  time  may  interrogatories  be  filed 
and  answered  ? 

496.  Rule  58.    How  many  sets  of  interrogatories  may  one  file  ? 

497.  Rule  58.    Who  answers  interrogatories  for  corporations? 

498.  Rule  58.  To  whom,  and  by  whom,  shall  interrogatories 
be  sent? 

499.  Rule  58.    How  are  answers  to  interrogatories  made? 

500.  Rule  58.  Within  what  time,  and  how,  are  objections  to 
interrogatories  made  ? 

501.  Rule  58.  When,  and  by  whom,  are  orders  made  to  enforce 
answers  to  interrogatories  or  to  effect  the  inspection,  or  production, 
of  documents?  What  is  the  effect  of  failing  or  refusing  to  obey 
such  orders? 

502.  Rule  58.  Under  what  circumstances  may  one  call  on  an- 
other to  admit  in  writing  the  execution  or  genuineness  of  any 
writing  ? 


696  Appendix 

503.  Rule  58.  What  is  the  effect  of  failing  to  make  such  an 
admission  ? 

504.  Rule  59.  When  are  references  to  masters  made? 

505.  Rule  59.  How  soon  after  the  reference  is  made  must  the 
hearing  take  place? 

506.  Rule  60.  What  are  the  duties  of  a  master? 

507.  Rule  60.  What  may  be  done  if  either  party  fails  to  appear 
before  a  master? 

508.  Rule  60.  What  may  the  parties  do  to  hasten  the  proceed- 
ings before  a  master? 

509.  Rule  61.  Of  what  does  a  master's  report  consist? 

510.  Rule  62.  What  powers  has  a  master? 

511.  Rule  63.  What  form  should  an  account  before  a  master 
take? 

512.  Rule  63.  What  may  one  not  satisfied  with  such  accounts 
do? 

513.  Rule  64.  May  affidavits,  etc.,  previously  made,  read,  or 
used  in  court  be  used  before  a  master? 

514.  Rule  65.  What  is  the  proper  procedure  as  to  the  taking 
of  evidence  before  a  master? 

515.  Rule  66.  When  and  how  is  the  return  of  the  master's 
report  made? 

516.  Rule  66.  Within  what  time  may  exceptions  to  the  master's 
report  be  made  ?  What  is  the  proper  procedure,  if  such  exceptions 
are  filed? 

517.  Rule  66.  What  is  the  result,  if  no  exceptions  to  the  report 
are  made? 

518.  Rule  67.  Who  pays  the  costs  when  exceptions  are  over- 
ruled or  sustained,  and  how  much  is  paid? 

519.  Rule  68.  How  and  by  whom,  are  masters  appointed  ? 

520.  Rule  68.  Who  fixes,  and  who  pays,  the  master's  compensa- 
tion? 

521.  Rule  68.  How  can  the  payment  of  such  compensation  be 
enforced  ? 

522.  Rule  69.  Within  what  time  must  a  petition  for  a  rehearing 
be  made,  and  what  should  be  the  form  of  the  petition  ? 

523.  Rule  70.  Who  may  bring  or  defend  suits  for  incompe- 
tents?   Who  appoints  such  persons? 

524.  Rule  71.    What  is  the  proper  form  for  decrees? 

525.  Rule  72.  Within  what  time,  and  how,  may  accidental 
clerical  mistakes  in  decrees  or  decretal  orders  be  made? 

526.  Rule  73.  What  is  the  proper  procedure  in  relation  to 
preliminary  injunctions  and  temporary  restraining  orders? 

527.  Rule  74.  When  an  apixnil  fi-om  a  final  decree,  in  an 
equity  suit,  granting  or  dissolving  an  injunction,  is  allowed  by  a 
justice  or  judge  who  took  part  in  the  decision  of  the  cause,  what 
may  he  do  to  secure  properly  Iho  rights  of  the  opposite  party? 

528.  Rules  75,  76  and  77.  What  is  the  proper  procedure  in  case 
of  an  appeal  ? 

529.  Rule  78.     What  may  one  do  in  place  of  taking  an  oath? 


Questionnaire  in  Federal  Procedure  607 

530.  Rule  79.  Under  what  circumstances  and  in  what  manner 
may  district  courts  make  further  rules  and  regulations  for  practice 
in  their  districts? 

531.  Rule  80.  What  is  the  effect  of  the  fact  that  the  time 
prescribed  by  the  Equity  Rules  for  doing  any  act  expires  on  a 
Sunday  or  legal  holiday. 

532.  Rule  81.    When  did  these  Equity  Rules  become  effective? 


TABLE  OF  CASES 


TABLE  OF  CASES 

[asterisk    (*)    DENOTKS  CASES  CITED  IN  NOTES] 

PAGE 

Ableraan  v.  Booth  and  United  States  v.  Booth 439 

*  Adams  v.  Shirk 149 

Adelbert   College   of  Western   Reserve   University   v.   Toledo, 

Etc.,   Ry.   Co 263 

*  Aggers  V.   Shaffer 135 

*Alabama,  State  of,  v.  Wolffe 311 

*Alexandria  Nat'l  Bank  v.  Willis  C.  Bates  Co 300 

Ambler  v.  Eppinger 132, 134,  135 

American  Grain  Separator  Co.  v.  Twin  City  Separator  Co.... 392 

American  Sugar  Refining  Co.  v.  Johnson 377 

American  Sugar  Refining  Co.  v.  New  Orleans 380,  409 

*American  Well  Works  Co.  v.  Bayne  and  Bowler  Co 173 

*Ames  V.  Colorado  Cent.  R.  Co 263 

*Arrowsmith  v.  Nashville  &  D.  R.  Co 226 

*Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Phillips 121 

Atherton  Mach.  Co.  v.  Atwood-Morrisun  Co 171 

*Attleboro  Mfg.  Co.  v.  Frankfort  Marine,   Accident  &  Plate 

Glass  Ins.  Co 229 

*Atwood  v.  The  Portland  Co 113 

* Auff mordt  v.  Hedden 55,  204 

♦Baldwin  v.  Chicago  &  N.  W.  Ry.  Co .104 

*Baldwin  v.   Franks 187 

♦Baldwin  v.  Pacific  Power  &  Light  Co 362 

Ball  V.  United  States .25 

Baltimore  and  Ohio  Railroad  Co.  v.  Wabash  R.  Co 434 

*Bank  of  British  North  America  v.  Barling 140 

*Bank  of  Commerce  and  Trust  v.  McArthur 371 

♦Banner  v.  The  Wabash  Railroad  Co 179 

♦Bartlett  v.  Gates 265 

♦Bates  V.  New  Orleans  B.  R.  &  V.  R.  Co 220 

♦Bedford  Quarries  Co.  v.  Welch 68 

♦Benchley  v.  Gilbert 323 

♦Bernardin   v.   Northall 173 

Berthold  v.   Hoskins 59 

701 


702  Table  of  Cases 

[asterisk   (*)   DENOTES  CASES  CITED  IN  NOTES] 

PAGE 

Batancourt  v.  Mutual  Reserve  Fund  Life  Ass'n 107 

*Betsy  and  Charlotte,  The 167 

*Bixby  V.  Janssen 196 

.  *Bjoruquist  v.  Boston  and  A.  R.  Co 101 

*Blackburn  v.  Portland  Gold  Mining  Co 64,  411 

*Bloek  V.  Darling 421 

*Bonafee  v.  "Williams 140 

*Bonner  v.  Meikle 251 

*Bowinan  's   Case    32 

*Bradstreet   v.    Higgins 421 

*Bragdon  v.  Perkins-Campbell  Co 335 

*Brainerd,  Slialer  &  Hall  Quarry  Co.  \.  Brice 149 

*Brawner  v.   Irwin 191 

*Brayley   v.    Hedges 314 

*Breckenridge,    In   re 265 

*Brewer  v.  Blougher  344 

*Briges   v.   Sperry 298 

*Briggs  V.  United  Shoe  Co 173 

*Brisenden  v.  Chamberlain 220 

*Brodhead  v.  Shoemaker 274 

*Brown  v.  Crawford 114 

*Bryan  v.  Barriger 289 

*Bryant  v.  Livermore 31 

Buck  V.  Colbath 435 

Buckner  v.  Finley  &  Van  Lear 140 

*Buena  Vista  Loan  &  Savings  Bank  v.  Grier 30 

Buford  V.  Strother 211 

*Bullock  Elec.  &  Mfg.  Co.  v.  Westinghouse  Elec.  Mfg.  Co..  .377,  399 
•Burrell  v.  United  States 54 

•Caldwell  v.   Firth 120 

♦California,  State  of,  v.  Chue  Fan 311 

Camp  V.  Bonsai 361 

Campbell  v.  H.  Ilackfeld  &  Co 158 

Capital  Traction  Company  v.  Ilof 406 

•Carico  v.  Wilmore 320,  323 

•Carpenter   v.    Talbot 348 

Carpenter  v.  United  States 199 

•Car.son  &  Rand  Lumber  Co.  v.  Holt/claw 281 

Cella  V.  Brown 415 


Table  of  Cases  703 

[asterisk    (*)   DENOTES  CASES  CITED  IN  NOTES] 

PAGE 

*Chaf3e  V.  Erhart 299 

*Cliase  V.   Weston 30 

*Chemung  Canal  Bank,  The,  v.  Judson 15 

*Chesapeake  &  0.  C.  A.  Co.  v.  Fire  Creek  Coal  &  Coke  Co 362 

Chiatovich  v.  Hanchett 290.  298 

Chicago,  B.  &  Q.  Ry.  v.  Williams 413 

*Cincinnati,  Hamilton  and  Dayton  Railroad  Co.  v.  McKeen.  .  .415 

*Citizens'  Sav.  &  Tr.  Co.  v.  Illinois  Cent.  R.  R 371 

*Citizens'  Trnst  and  Savings  Bank  v.  Ilobbs 292 

*Clark  V.  State 32 

*Clarke  v.  Janesville 140 

*Cleghorn  v.  Cleghorn 35 

*Cleveland  Engineering  Co.  v.  Gallon  D.  M.  Truck  Co 114 

Cochran  v.  Montgomery  Connt}^ 251 

*Collingsworth  County  v.  Myers 32 

*Collins  V.  Wellington 226 

*Colorado  Fuel  &  Iron  Co.  v.  Four  Mile  Ry.  Co 307 

Coltrane  v.  Templeton 28 

Compton  V.  Jesup 121,  265 

Conn  V.  Chicago,  B.  &  Q.  R.  Co 131 

*Continental  Trust  Co.  v.  Toledo,  St.  L.  &  K.  C.  R.  Co 131 

*Cook  V.  Seligman 306 

Cooper,  In  Re 405 

*Cooper  V.  Richmond  &  D.  R.  Co 283 

*Cornwell,  Ex  Parte 32 

Cortes  Co.,  The,  v.  Thannhauser 355 

Cound  V.  Atchison,  T.  &  S.  F.  Ry.  Co 358 

Cowell  V.  City  Water  Supply  Co 57 

Crawford   v.   Johnson 184 

Crouch,   Ex  Parte 441 

*Curtin  v.  Decker 230 

Dahlonega  Co.  v.  Frank  W.  Hall  Merchandise  Co 262 

*David  Lupton's  Sons  v.  Auto  Club  of  Am 211 

*Davis  V.  Dixon 120 

*Davis  V.  Mills 64 

*Davis  V.  South  Carolina 320,  323,  326 

*De  Hierapolis  v.  Lawrence 371 

*Denny  v.  Pironi 15 

*Denver  &  R.  R.  Co.  v.  Mills 62 


704  Table  of  Cases 

[asterisk    (*)   DENOTES  CASES  CITED  IN  NOTES] 

PAGE 

*Desert  Water,  Oil  &  Irr.  Co.  v.  State  of  California 106 

Detroit,  City  of,  v.  Detroit  City  Ry.  Co 265,  270 

*Dinet  v.  City  of  Delavan 298 

*Doe  V.  Brandling 344 

Dow  V.  Bradstreet 222 

*Dowell  V.  Griswold 78 

Dred  Scott  v.  Sandf ord 12 

Dreutzer  v.  Frankfort  Land  Co 388 

*Dubois  V.  McLean 344 

Dudley    E.   Jones   v.    Hunger   Improved    Cotton    ]\Iach.    Mfg. 

Co 385,  393 

*Dunbar  v.  Rosenbloom 290 

*Duncan  v.  Associated  Press 288 

Duncan  v.  Atlantic  Coast  Line  R.  Co 32 

Dunn  V.  Clarke 109,  356 

*Dunn  V.  Waggoner 109 

*Duplessis  Independent  Shoe  M.  Co 343 

*Dupree  v.  Leggette 64 

*Du  Quoin  Waterworks  Co.  v.  Parks 30 

*Duryea  Power  Co.  v.  Sternbergh 428 

*Dwyer  v.  Pesliall 290 

•Eagle  Glass  &  Mfg.  Co.  v.  Rowe 396 

♦East  Tennessee  V.  &  G.  R.  Co.  v.  Atlanta  &  F.  R.  Co 367 

Edwards  v.  Bates  County 74 

*Egan  V.  Chicago  Great  Western  Ry.  Co 431 

•Ellis  V.  Atlantic  &  Pacific  Railroad 299 

•Ellison  V.  Louisville  &  N.  R.  Co 281 

•Emery  v.  Central  Trust  &  Safe  Deposit  Co 377 

Epstein  v.  United  States 30 

•Excelsior  W.  P.  Co.  v.  Pacific  Bridge  Co 173 

•Fair,  The,  v.  Kohler  Die  Co 173, 179 

•Fairview  Fluospar  &  Lead  Co.  v.  Bethlehem  Steel  Co 284 

Farmers'  Loan  &  Trust  (-o.  v.  Iowa  Water  Co 372 

Fidelity  Trust  Cn.  v.  (iill  Car  Co 208 

•Fiiidlcy  v.  Smith 31 

•First   X;it.   liank  v.  McGuire 30 

Fiskc  V.    H.'iiaric 18,  243,  244,  261,  274,  275,  288 

•Fitch    V.    Crcightori 11 


Table  of  Cases  705 

[asterisk   (*)  DENOTES  CASES  CITED  IN  NOTES] 

PAGE 

Floyt  V.  Shenango  Furnace  Co 226 

Foster  v.  Pargould 230 

*Fowler  v.  Byers _....._..  .^. .  .^.,. 31 

*Fox  V.  Southern  Ry.  Co 290,  305 

*Franklin  v.  Conrad-Stanford  Co 121 

*Franz  v.  Wahl 283 

Froment  v.   Duclos 194 

*Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Mackney 31 

Galveston,  etc.,  Railway  Co.  v.  Gonzales 351 

*Gay  V.  Minot ..^. 32 

*Georgia,  State  of,  v.  Bolton 319 

Gibson  v,   Mississippi ...,  .^j^, , 307 

Gilson  V.  Mutual  Reserve  Fund  Life  Ass  'n 229 

*Givens  v.  Lord  Crawshaw 37 

Gold- Washing  and  Water  Co.  v.  Keyes 215, 411 

Gooding  v.  Reid,  Murdock  &  Co 429 

*Gordon  v.  Third  National  Bank 15 

*Grace  v.  American  Central  Insurance  Co 117,  298 

*Grand  Trunk  Ry.  Co.  v.  Twitchell 298 

Greene  County  Bank  v.  J.  H.  Teasdale  Commission  Co 69 

*Griesa  v.  Mutual  Life  Ins.  Co 391 

Groton  Bridge  &  Mfg.  Co.  v.  American  Bridge  Co 289,299 

*Grow  V.  Wiman 300 

Guernsey  v.  Cross 333 

*Gustafson  v.  Chicago,  R.  I.  &  P.  Ry.  Co 226 

♦Hagstoz  V.  Mutual  Life  Ins.  Co.  of  New  York 362 

Hallam  v.  Tillinghast _._,^.  .^. 77,  219 

*Hamilton  and  Dayton  Railroad  v.  McKeen 415 

Hammerstein  v.  Lyne ^. .  ,^. 93 

Hans  V.  Louisiana ,j^ 89 

*Hansen  v.  Pacific  Coast  Asphalt  Cement  Co 218 

*Harlan  v.  Houston .^. . , 135 

*Harrington  v.  Atlantic  &  Pacific  Telegraph  Co 173 

*Harris,  Ex  Parte 31 

*Harrold  v.  Arrington 306 

*Harton  v.  Howley 120 

*Hayes  v.  Todd 306 

*H.  C.  Cook  Co.  V.  Beecher. . .  .^.. .... .  .^. 173 

Wheaton  C.  F.  P.— 45 


706  Table  of  Cases 

[asterisk    (*)   DENOTES  CASES  CITED  IN  NOTES] 

PAGE 

*Healy  v.  Sea  Gull  Specialty  Co 173 

Helwig  V.   United  States 179 

*Henry  v.   Merguire 424 

Hepburn  &  Dundas  v.  Ellzey 104, 106 

*Herndon  v.  Southern  R.  Co 281 

*Hertz  V.  Woodman 418 

*Hill  V.  Great  Northern  Ry.  Co 351 

Hill  V.  United  States 198 

*Hodge  V.  Chicago  &  A.  Ry.  Co 299 

Hohorst,  In  re 349,  350 

Holden  v.  Stratton 397,  425 

*Holland  Trust  Co.  v.  International  Bridge  &  Tramway  Co.. .  .439 

Holmes  v.    Goldsmith 149 

*Holmes  v.  Southern  Ry.  Co 251 

*Holt  V.  Indiana  Manufacturing  Co 173, 189 

*Howard  v.  Southern  Ry.  Co 289 

*Hoyt  V.  Ogden  Portland  Cement  Co 337 

*Hubinger  v.  Central  Trust  Co 437 

*Hudson  Nav.  Co.  v.  Murray 337 

*Hudson  River  Railroad  &  Terminal  Co.  v.  Day 218 

Huguley  Mfg.  Co.  v.  Galeton  Cotton  Mills,  In  re 418 

*Humes  v.  City  of  Little  Rock 62 

*Hurd  V.  Gere 290 

♦Iluskins  V.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co 274 

Hyde   v.    Ruble 235 

♦Hyde  v.  Victoria  Land  Co 283,  284 

•Illinois  Cent.  R.  Co.  v.  A.  Waller  &  Co 218 

•Independent  Pub.  Co.,  In  re 433 

•Ingraham  v.  State 30 

Insurance  Company  v.  Dunham 154, 162 

•Insurance  Company  v.  IMorse 208 

Ireland  v.  Woods 409 

•Jackson  V.  Ilcaly 55 

January   v.   State 30 

•Jonks  V.   Brewster 113 

•Jcurtt  V.  IJradfonl  Sav.  Hank  &  Trust  Co 149 

Johnson    v.    Jurnci 191 

Jones  v.  Adams  lvx|»i-('ss  (Jo 295 


Table  of  Cases  707 

[asterisk    (*)   DENOTES  CASES  CITED  IN  NOTES] 

PAGE 

Jones  V.   Foster 311 

Jones  V.  Gould 367 

Joseph  Seguuda,  The 164 

*Kansas  Citj^  Southern  Ry.  Co.  v.  Prunty 298 

*Karahoo  v.  Adams 108 

*Kentucky  Coal  Lands  Co.  v.  Mineral  Development  Co 367 

*Kentucky,  Commonwealth  of,  v.  Wendling 311 

Keyser  v.  Lowell 381 

*Kingman  v.  Western  Manufacturing  Co 377,  424 

*Kirvin  v.  Virginia-Carolina  Chemical  Co 15 

Kirwan  v.  Murphy    418 

Knotts  V.  Virginia-Carolina  Chemical  Co 20 

*Knudson  v.  First  Trust  and  Savings  Bank 435 

Kurtz  V.  Moffitt 64 

*Kurtz  V.  Strauss 173 

*Ladew  v,  Tennessee  Copper  Co 371 

Lau  Ow  Bew  v.  United  States 380,  416,  417 

*Lebensberger  v.   Scofield 362 

*Lee  V.  Heuman 31 

*Lees  v.  U.  S 183 

*L.  E.  AVaterman  Co.  v.  Parker  Pen  Co 343 

♦Lewis  v.  Clyde  S.  S.  Co 288 

Lewis  V.  The  Orpheus 437 

♦Lincoln  v.  Territory 37 

Livingston  v.  Jefferson 362 

Loeb  V.  Columbia  Township  Trustees 136, 410 

*Loesnitz  v,  Seelinger 24 

Lorman  v.  Clarke 11,  46 

♦Louisiana  v.  Texas  &  P.  Ry.  Co 64 

♦Louisville  &  N.  R.  Co.  v.  Bitterman 62 

Louisville  and  Nashville  Railroad  Company  v.  Mottley 78 

Louisville  &  Nashville  R.  R.  Co.  v.  Rice 177 

♦Lyman  v.  Boston  and  A.  R.  Co 46 

♦Lyon  County  v.  Keene  Five-Cent  Sav.  Bank , 138, 140 

♦Mahoney  v.  New  South  Building  &  Loan  Ass'n 288 

♦Mallon  V.  Hyde 216 

♦Mannington  v.  Hocking  Valley  Ry.  Co 337 


708  Table  op  Cases 

[asterisk    (*)   DENOTES  CASES  CITED  IN  NOTES ] 

PAGE 

•Marry  v.  James 31 

•Martin  v.  Carter 290,  291 

Martin  v.  Hunter 's  Lessee 1 

•Martin  v.  Matson  Nav.  Co 226 

Martin  v.  Snyder 228 

•Mays  V.  Newlin 305 

•M'Clean,   In   re 220 

M'Glashan  v.  United  States 16 

•McChord  v.  Railway  Co 89 

•McDaniel  v.  Traylor   64 

•Mclndoo  V.  State 35 

•McNutt  V.  Bland 50,  51, 110 

Mechanics'  and  Traders'  Bank  v.  Union  Bank 7 

•Menasha  "Wooden  Ware  Co.  v.  Southern  Oregon  Co 149 

•Metropolitan  Life  Ins.  Co.  of  New  York  v.  Ethier 274 

•Mexican  Central  Railway  Co.  v.  Eckman 110 

Mexican  Ore  Co.  v.  Mexican  Guadalupe  Mining  Co 356 

Mexico,   City   of 167 

•Miller  v.  Salomons 344 

•Missouri,  K.  &  T.  Ry.  Co.  v.  Chappell 300 

•Mollan  V.  Torrance 145 

Montgomery  County  v.  Cockran 437 

Moore,  In  re 231 

•Morehouse  v.  Morehouse 37 

Moorehouse  v.  Pacific  Hardware  &  Steel  Co 396 

•Morgan  v.  Hines 237 

Morgan  v.   Thompson 375,  409,  412 

Morris  v.   Gilmer 99, 114 

•Mullen  V.  Western  Union  Beef  Company 408 

•Munce   v.    State 37 

•Mutual  Life  Ins.  Co.  v.  Langley 299 

•Myrtle  v.  Nevada,  C.  &  0.  Ry.  Co 216 

•Noganab  v.  Hitchcock 198 

•Xar.-iso  I'.Jisso  v.  The  United  States 9,  203 

Xational  Home  for  Disabled  Volunteer  Soldiers  v.  Butler 26 

•Nelson  v.  Ilusted 371 

•New  Chester  Water  Co.  v.  Holly  Mf 'g  Co 121 

•New  Kngland  Mortgage  ('ompany  v.  Gay 67 

•New  Jersey,  State  of,  v.  Corrigan 311 


Table  of  Cases  709 

[asterisk    (*)   DENOTES  CASES  CITED  IN  NOTES] 

PAGE 

New  Orleans,  The  Corporation  of,  v.  Winter 105 

•Nichols  V.  Nichols 101 

N.  K.  Fairbank  Co.,  Ex  Parte 35 

Nolen  V.  Riechman 62 

*North  American  Cold  Storage  Co.  v.  City  of  Chicago 78 

*North  Carolina,  State  of,  v.  Kirkpatrick 319 

•Northern  Pac.  Ry.  Co.  v.  Pacific  Coast  Lumber  Mfrs.  Ass'n.  .385 

•Norton  V.  Shelby  County 26 

•Nuesces  Valley  Town-Sites  Co.  v.  M  'Adoo 89 

•Oakland,  City  of,  v.  Oakland  Water  Front  Co 32 

•Odbert  v.   Marquet 377 

•Odell  V.  F.  C.  Farnsworth  Co 173 

•O'Hara,  Ex  Parte 340 

Ohio  and  Mississippi  Railroad  Company,  The,  v.  Wheeler 102 

•Ohio,  State  of,  v.  Cox 89 

•Olney  v.  Arnold 408 

Omaha  Horse-Ry.  Co.  v.  Cable  Tramway  Co.  of  Omaha 83,  111 

•Pacific  Mut.  Life  Ins.  Co.  v.  Tompkins 362 

•Pack  V.  Carter 385 

•Pace  V.  Reed 30 

Paige  V.  Town  of  Rochester 134, 148 

•Pannill  v.  Roanoke  Times  Co 101 

Parker  v.   Vanderbilt 251,  269 

•Park  Square  Automobile  Station  v.  American  Locomotive  Co. .  284 

•Patterson  v.  Winn 344 

•Paul  V.  Virginia 102 

Pawlet,  Town  of,  v.  Clark 10,  55 

Pennsylvania  Company,  In  re 222,  243,  244,  251,  266,  282,  288 

•Pennsylvania  Co.,  etc.  v.  Jacksonville  T.  &  K.  W.  Ry  Co 387 

Pennsylvania  Steel  Co.  v.  New  York  City  Ry.  Co 28 

•Phillips  V.  Preston -. . .  145 

Pike's  Peak  Power  Co.  v.  City  of  Colorado  Springs 382 

•Pilgrim  v.  Aetna  Life  Ins.  Co 290 

•Plunkett  V.  Gulf  Refining  Co 237 

Pooley  V.  Luco 129, 196 

•Portland  Ry.,  Light  &  Power  Co.  v.  City  of  Portland 78 

•Post  V.  Buckley 121 

•Post  Master  General  v.  Early 55 

•Powei-s  v.  Commonwealth 37 


710  Table  of  Cases 

[asterisk    (*)   DENOTES  CASES  CITED  IN  NOTES] 

PAGE 

Postal  Telegraph  Cable  Co.  v.  Alabama 82, 114 

Power  and  Irrigation  Co.  v.  Capay  Ditch  Co 133 

Powers  V.  Chesapeake  and  Ohio  Railway  Company 292 

*Pray  v.  U.  S 55 

*Price  &  Hart  v.  T.  J.  Ellis  &  Co 218 

*Pullman's  Palace  Car  Co.  v.  Washburn 113 

•Quinlan  v.  Green  County 415 

•Railroad  Commission  of  Louisiana  v.  Texas  &  P.  Ry.  Co 64 

Railway  Co.  v.  Whitton 101,  205 

Ramsey  v,  Coolbaugh  &  Brooks 93 

*Rawitzer  v.  Wyatt 348 

Reese  v.  Zinn 120 

Reid  Wrecking  Co.  v.  United  States 197 

*Reilly  v.  Golding 113 

•Reynolds  v.  Lyon  County 140 

*Rice  V.  Houston 110 

*Rice  V.  Railroad  Co 11 

♦Riddle  v.  New  York,  L.  E.  &  W.  R.  Co.; 355 

♦Robert  v.  Pineland  Club 290 

♦Robertson  v.   Cease 15 

♦Rones  v.  Katalla  Co 229 

Root   V.   Mills 382 

♦Rosenberg  v.  Union  Iron  Works 183 

Ross  V.  H.  S.  Geer  Co 173 

♦Rough  V.  Booth 306 

Ruby  Canyon  Gold  Mining  Co 289 

♦Rust  Land  &  Lumber  Co.  v.  Jackson 412 

Ryan  v.   Bindley 420 

♦Ryan  v.  Ohner 106 

♦Sally,  The   167 

Sampson  v.  Welsh 421 

♦Sanders  v.  Western  Union  Telegraph  Co 284 

♦San ford   v.    Boyd 55 

♦San  Joafiuin  v.  K.  H.  (';inal  &  Irr.  Co.  v.  Stanislaus  County.  .   78 

♦Santiago   v.   Nogueras 9 

♦Sarah,  The 1(51, 162, 167 

♦Saunders  v.  U.  S 55 


Table  op  Cases  711 

[asterisk   (*)  DENOTES  CASES  CITED  IN  NOTES] 

PAGE 

Savin   Petitioner    432 

Schofield  V,  Horse  Springs  Cattle  Co 22 

Schunior  v.  Russell 197 

*Scott  V.  Frazier 62 

*Scott  V.  R.  D.  Kinney 311 

•Security  Mutual  Life  Ins.  Co.  v.  Prewitt 208 

*Sere  v.  Pitot 149 

•Seybert  v.  Shamokin  &  Mt.  C.  Electric  Ry.  Co 367 

*Shainwald   v.   Davids 355 

*Shattuck  V.  North  British  &  Mercantile  Ins.  Co 240 

*Sidway  v.  Missouri  Land  &  Live  Stock  Co 289 

Simpson  v.  Geary 64, 187 

♦Simpson  v.  Phillipsdale  Paper  Mill  Co 120 

*Smith,  Ex  Parte 55 

♦Smith  v.  Atchison,  T.  &  S.  F.  R.  Co 348 

Smith  V.  Lyon   243,  288,  345 

♦Smith  V.  Packard 149 

Smith  V.  Vulcan  Iron  Works 392,  419 

♦Snow  V.  Smith 240 

♦Solomon  v.  Pennsylvania  R.  Co 290 

♦Speckart  v.  German  Nat.  Bank 295 

St.  John  V.  Taintor 283 

St.  Paul,  M.  &  M.  Ry.  Co',  v.  St.  Paul  &  N.  P.  R.  Co 81, 412 

Stanbrough  v.  Cook 245 

♦State  V.  Hocker 35 

♦State  V.  Palmer 37 

State  V.  Sullivan 323,  332 

♦State  V.  Wolfe 37 

♦State  v.  Young 32 

♦Stevenson  v.  Fain 55 

Stevenson,  In  re 21 

Stevirmac  Oil  &  Gas  Co.  v.  Dittman 377 

♦StillweU-Bierce  &  Smith- Vaile  Co.  v.  Williamston  Oil  &  Fert. 

Co.  , 68 

♦Stone  V.  Marion  County 30 

♦Stonega  Coal  &  Coke  Co.  v.  Louisville  &  N.  R.  Co 362 

♦Storm  Lake  Tub  and  F.  v.  Minneapolis  &  St.  L.  R.  Co 179 

♦Stotesbury  v.  Huber 149 

♦Stowel  V.  Zouch 344 

♦Stratton  v.  Stratton. 408 


712  Table  of  Cases 

[asterisk    (*)   DENOTES  CASES  CITED  IN  NOTES] 

PAGE 

Strawbridge  v.   Curtis 106, 108, 194 

*Streett  v.  Reynolds  24 

♦Sullivan  v.  Lloyd  120 

Swafford  v.  Cornucopia  Mines  of  Oregon 77 

♦Swindell  v.  Youngstown  Sheet  &  Tube  Co 173 

♦Tampa  St.  Ry.  &  Power  Co.  v.  Tampa  Suburban  R.  Co 35 

♦Taylor  v.   Breese 385 

♦Taj^lor  V.  Decatur  Mineral  Land  Co 62 

♦Tefft,  Weller  &  Co.  v.  Munsuri 425 

♦Templeton  v.  Giddings 32 

♦Terre  Haute,  City  of,  v.  Evansville  &  T.  H.  R.  Co 211- 

♦Terry  v.  State 35 

Texarkana  Telephone  Co.  v.  Bridges 305 

♦Texas  v.  Gaines 311 

♦Texas  Co.  v.  Central  Fuel  Oil  Co 367 

♦Thaxter  v.    Hatch 131 

♦Thompson  v.  Searcy  County 140 

♦Thompson   v.    Stalman 109 

♦Thomson  v.  Town  of  Etton 140 

♦Thornton,  Adm'r,  v.  Moore 32 

Thouron  v.  East  Tennessee,  V.  &  G.  Ry.  Co 248 

Tliurber  v.  Miller 240 

♦Toledo  Newspaper  Co.  v.  United  States 433 

♦Tornanses  v.   Melsing 377 

♦Tortal  V.  Hardin  Min.  &  Mfg.  Co 290 

♦Towne  v.  Smith 140 

•Tracy  v.  Morel 292 

Tyler,  Li  re 123,  372 

•Ulman  v.  Laeger's  Adra'r 106 

Underwood  Typewriter  Co.  v.  Fox  Typewriter  Co 342 

United  Shoe  M.  Co.  v.  Duplessis  Iiideiiendent  Slioe  M.  Co.... 343 

•U.  S.  V.  Alexander 28 

•Ignited  States  v.  Barrett 54 

United  States  v.  Block 43 

United  States  v.  Bui'lingloii  &  Ilciuh'i-.son  Cdunty  Ferry  Co...    11 

•United  States  v.  Carter 433 

•U.  S.   V.  Cole 187 

United  States  v.  Elli-cll 423 

•United  Sliitcs  V.  lOincisdii 433 


Table  of  Cases  713 

[asterisk    (*)   DENOTES  CASES  CITED  IN  NOTES] 

PAGE 

*United  States  v.  Eisenbeis 437 

*U.  S.  V.  Germaine 55,  204 

•United  States  v.  Freeman 344 

United  States  v.  Grant 422 

*United  States  v.  Haas 55 

United  States  v.  Hartwell 54,  204 

*United  States  v.  Henderlong, 54 

United  States  v.  Hill 168 

United  States  v.  Hoffman 403 

U.  S.  V.  Loughery 18 

*United  States  v.  Maurice 55 

United   States  v.   McCrory 203 

*United  States  v.  Mouat 55,  204 

United  States  v.  Murphy 37 

U.  S.  V.  Nipissing  Mines  Co 204 

*United  States  v.  Pirates 340 

*U.  S.  V.  Rea-Read  Mill  and  Elevator  Co 54 

United  States  v.  Rodgers 337 

*United  States  v.  Sanges 187 

*United  States  v.  Sheridan 54 

♦United  States  v.  Smith 55,  204 

*United  States  v.  Southern  Pac.  R.  Co 355 

United  States  v.  Standard  Oil  Co 348 

*United  States  v.  Swift 204 

*United  States  v.  Union  Pacific  R.  R.  Co 349,  414 

*U.  S.  Consol.  Seeded  Raisin  Co.  v.  Phoenix  Raisin  S.  &  P.  Co.. 343 

United  States  Fidelity  Co.  v.  Kenyon 48 

♦United  States  Fidelity  &  G.  Co.  v.  State  of  Oklahoma 412 

United  States  Fidelity  &  G.  Co.  v.  U.  S 48 

Upshur  County  v.  Rich 40 

*Vallery  v.  Denver  &  R.  G.  R.  Co 113 

*Van  Zandt  v.  Maxwell 323 

*Vaugh  V.  English 55 

♦Vengeance,   The    167 

*Vicksburg  v.   Henson 377 

*Victor  V.  Cisco 323 

♦Victor  Talking  Machine  Co.  v.  The  Fair 173 

Virginia,  Commonwealth  of,  v.  Bingham 314 

Virginia,  Commonwealth  of,  v.  De  Hart 319 


714  Table  of  Cases 

[asterisk    (*)   DENOTES  CASES  CITED  IN  NOTES ] 

PAGE 

♦Virginia  v.   Paul 318,  319 

Virginia,  State  of,  v.  Felts 332 

♦Vose  V.  Roebuck  Weather-Strip  &  Wire  Screen  Co 173 

*Wachusett  Nat.  Bank  v.  Sioux  City  Stove  Works 149 

•Walcott  V.  Watson 283 

*Walker  v.  O'Neill 229 

♦Walsh   V.   Porter 9 

♦Warax  v.  Cincinnati,  N.  0.  &  T.  P.  Ry.  Co 226 

♦Watson  V.  Bonfils 106 

♦Waugh  V.  Middleton 344 

♦Wayne   v.   Venable 89 

♦Webb  V.  Southern  Ry.  Co 300 

♦Wells  Fargo  &  Co.  v.  Cuneo 179 

West  V.  Aurora  City 216 

•Westbrook  v.  Director  General  of  Railroads 216 

♦Western  Loan  Co.  v.  Butte  &  Boston  Min.  Co 362 

♦West  Kentucky  Coal  Co.  v.. Ky 226 

Whelan  v.  New  York,  L.  E.  &  W.  R.  Co 254,  274 

♦White  V.  Chase 121 

White  V.  Vermont  and  Massachusetts  Railroad  Company 138 

♦Whitworth  v.  United  States 377 

♦Wiemer  v.  Louisville  Water  Co 15, 120 

♦Wiggins  V.   Bethune 110 

Wilcox  &  Gibbs  Guano  Co.  v.  Phoenix  Ins.  Co 292 

♦Wilcoxen  v.  Chicago,  B.  &  Q.  R.  Co 220 

♦Wilks  v.   State 35 

♦Williams  v.  Wilson  Fruit  Co 290 

♦Williamson  v.  Osenton 101 

Wilson  V.  Knox  Co 130 

Wilson   v.    Smith 220 

♦Wilson  V.  Winchester  &  P.  R.  Co 289 

♦Wisner  v.  Ogden 109 

♦Wogan  Bros.  v.  American  Sugar  Refining  Co 350 

Young   V.    Bryan 144 


INDEX 


i 


INDEX 

[references  are  to  pages] 

ACCOMMODATION  MAKING 

effect  of  on  right  of  endorsee  to  sue  maker  of  chose  in  action  (promissory 
note),  149. 

ADMIRALTY 

what  civil  cause  of  is,  154,  158. 

ALIENS 

district  within  which  one  may  sue,  350. 
removal  by,  262. 

federal  court  does  not  have  jurisdiction  of  action  between  on  ground  of 
diversity  of  citizenship,  129. 

AMBASSADORS,  ETC. 

jurisdiction  of  supreme  court  over  cases  relating  to,  400. 

AMOUNT  IN  CONTROVERSY 

as  affected  by  counterclaim,  65. 

determined   by   bona    fide   claim    of    claimant   where   money   recovery   is 

sought,  69. 
effect  of  dismissing  bill  of  complaint  upon  when  counterclaim  has  been 

set  up,  65. 
in  case  of  removal  on  ground  of  prejudice  or  local  influence,  251. 
matured  interest  coupons  as  part  of,  74. 
necessary  to  go  from  circuit  court  of  appeals  to  supreme  court  by  appeal 

or  writ  of  error,  420,  421. 
necessary  to  obtain  removal,  229. 
there  must  be  right  capable  of  being  valued  in  money,  if  jurisdiction  of 

federal  court  depends  on,  65. 
what  is  the,  57. 

what  sums  may  be  added  to  make  up  proper,  62. 
when  recovery  of  property  is  involved,  69. 

ANCILLARY 

jurisdiction  of  federal  court,  121. 

proceedings,   necessity  of  diversity  of  citizenship   to  give   federal  court 
jurisdiction  in,  109. 

APPEAL 

time  within  which  it  must  be  taken  from  the  court  of  claims  to  the  su- 
preme court,  422,  423. 

717 


718  Index 

[HEPERENCES  ARE   TO  PAGES] 

APPOINTMENT 

by  senior  circuit  judge  of  himself  to  serve  for  other  judge  allowed,  28. 
of  one  judge  to  serve  for  another,  how  made,  26. 

ASSIGNMENT  OF  CHOSE  IN  ACTION 
when  there  is  an,  148,  149. 

BANKEUPTCY  MATTERS 

jurisdiction  of  supreme  court  in  relation  to,  425. 

BANKRUPTCY  PROCEEDINGS 

and  controversies  arising  in  said  proceedings,  meaning  of,  425. 
jurisdiction  of  circuit  court  of  appeals  over,  396. 

BEARER  INSTRUMENT 

bond  issued  in  blank  is,  138. 

BLANK 

bond  issued  in  is  bearer  instrument,  138. 

BOND  IN  CASE  OF  REMOVAL 

form  and  presentation  of,  and  effect  of  presentation  of,  298,  299. 

BROUGHT 

meaning  of,  340, 

BY  CERTIORARI  OR  OTHERWISE 
meaning  of,  418. 

CERTIFICATION  OF 

cases  from  circuit  court  of  appeals  to  the  supreme  court,  when  made,  413, 

415,  416,  417. 
questions  by  the  circuit  court  of  appeals  to  the  supreme  court,  413,  415. 

CERTIORARI 

the  relation  to  removal  proceedings  of  the  writ  of,  323,  332. 
writ  of  not  granted  as  of  right,  409. 

writ  of,  when  supreme  court  may  direct  circuit  court  of  appeals  to  certify 
case  by  use  of,  416. 

CHANGE  OF 

citizensliip  for  purpose  of  bringing  action  in  federal  court,  effect  of,  114. 
time  of  liolding  diHtrict  court,  effect  of,  16. 

CHOSE  IN  ACTION 

effcc.f   of  citizenship  of  iiitcriufdiate  assignee  on  right  to  sue  on,  145. 
jiiriHdiction  of  federal  court  in  actions  to  recover  contents  of,  130. 
meaning  of,  131,  133,  135. 


Index  719 

[references  are  to  pages] 

CHOSE  IN  ACTION— Continued 

(promissory  note)   effeet  of  accommodation  making  on  right  of  endorsee 

to  sue  maker  of,  149. 
(promissory  note)   rif;ht  of  endorsee  to  recover  against  endorser  of,  144. 
■when  there  is  an  assignment  of  a,  148,  149. 

CIECUIT  COURT  OF  APPEALS 

certification  of  questions  to  the  supreme  court  by  the,  413,  416. 

extent  of  power  of  in  case  of  an  appeal  from  an  interlocutory  order,  392. 

jurisdiction  of  in  cases  involving  jurisdiction  of  federal  court,  377. 

jurisdiction  of  in  general,  380. 

jurisdiction  of  over  bankruptcy  proceedings  and  controversies  arising  in 

said  proceedings,  396. 
no  appeal  from  to  supreme  court  in  relation  to  interlocutory  order,  418. 
vi^hen  certification  of  cases  is  made  to  the  supreme  court  from  the,  413,  415. 

416,  417. 
■when  directed  by  supreme  court  to  certify  case  to  it,  416. 
when  its  jurisdiction  depends  entirely  on  diversity  of  citizenship,  318. 

CITIZEN  OF  DISTRICT  OF  COLUMBIA 

not  citizen  of  state  for  purpose  of  giving  federal  court  jurisdiction,  104. 

CITIZEN  OF  TERRITORY 

not  citizen  of  state  for  purpose  of  giving  federal  court  jurisdiction,  105. 

CITIZEN 

municipal  corporation  is,  136. 

CITIZENSHIP 

definition  of,  93. 

of  corporation,  101. 

of  executor  in  removal  of  case,  220. 

of  parties  in  removal  of  proceedings,  248,  251,  254. 

whose  is  important  when  infant  sues  through  next  friend,  220. 

CIVIL  ACTION 
meaning  of,  343. 

CIVIL  NATURE 

meaning  of  a  suit  of  a,  at  common  law  or  in  equity,  43, 

COLUMBIA 

citizen  of  District  of  not  citizen  of  state  for  purpose  of  giving  federal 
court  jurisdiction,  104. 

COMMERCE 

cases  arising  under  laws  regulating,  177. 

CONCUR 

federal  constitution  and  law,  to  give  federal  courts  jurisdiction,  must,  11. 


720  Index 

[references  are  to  pages] 

CONCURRENT  JURISDICTION 

right  of  one  court  to  deal  with  problem  after  another  court  has  already 
taken  jurisdiction,  dSi,  435,  439,  441. 

CONSPIRACIES 

mentioned  in  R.  S.,  sec.  1980,  186. 

CONSTITUTION  AND  LAWS  OF  THE  UNITED  STATES 
■when  a  suit  arises  under,  78,  81. 

CONSULS 

actions  against,  194,  196. 
meaning  of,  197. 

CORPORATION 

citizenship  of,  101. 

district  and  state  within  which  one  may  sue  a,  351,  358. 

COUNSEL 

when  a  judge  is  of,  32. 

COUNTERCLAIM 

right  under  section  24,  subdivision  20,  to  obtain  an  affirmative  judgment 
against  the  United  States  by  way  of,  204. 

COURT  OF  CLAIMS 

time  within  which  appeal  must  be  taken  to  supreme  court  from  the,  422, 
423. 

COURT 

to  which  removal  may  be  had,  283. 

when  one  is  within  the  presence  of  the,  432. 

CUBA 

citizen  of  is  citizen  of  foreign  state  for  purpose  of  jurisdiction  of  federal 
court,  107. 

DEPUTY  CLERK 

power  of  in  removal  proceedings,  323. 

DISMISS  CASE 

duty  of  federal  court  to,  114. 

DISTRICT  AND  STATE 

within  wliich  corporation  may  be  sued,  351,  358. 

DISTRICT  COURT 

when  apponls  and  writs  of  error  may  be   taken  directly  ot  the  supreme 
court  from  tlio,  109. 


Index  721 

[refkrences  are  to  pages] 

DISTRICT  WITHIN  WHICH 

civil  action  may  be  brought  when  jurisdiction  of  federal  court  is  based 

only  on  diversity  of  citizenship,  345. 
one  brings  supplementary  proceedings,  356. 
one  may  sue  an  alien,  350. 

DIVERSITY  OF  CITIZENSHIP 

all  plaintiffs  must  be  citizens  of  diflFcrcnt  states  than  all  of  defendants,  109. 

as  basis  of  jurisdiction  of  federal  court  in  action  between  aliens,  129. 

district  within  which  civil  action  may  be  brought  when  jurisdiction  of 
federal  court  is  based  only  on,  345. 

municipal  corporation  held  to  be  a  citizen  to  give  federal  court  jurisdic- 
tion on  ground  of,  136. 

necessity  of  in  ancillary  proceedings,  109. 

when  jurisdiction  of  federal  court  is  founded  only  on  358. 

when  there  must  be  in  case  of  removal,  230. 

DIVISION  OF  DISTRICT 

meaning  of,  367. 

ENDORSEE 

right  of  to  recover  against  endorser  of  chose  in  action  (promissory  note), 
144. 

EQUAL  RIGHTS  LAWS 

when  removal  can  be  based  on  inability  to  enforce  right  under,  307. 

EQUITY 

what  are  suits  in,  46. 

ERROR 

writ  of,  granted  as  of  right,  409. 

EXCLUSIVE  JURISDICTION  OF  SUPREME  COURT,  400. 

FEDERAL  QUESTION 

removal  on  ground  of,  215. 

FINAL  DECREE 
meaning  of,  385. 

FOREIGN  BILL  OF  EXCHANGE 
meaning  of,  140. 

FOREIGN  STATE 

for  purpose  of  jurisdiction  of  federal  court,  citizen  of  Cuba  is  citizen 
of,  107. 

FORMAL  PARTIES  OMITTED,  ETC.,  120. 
Wheaton  C.  F.  P.— 46 


722  Index 

[references  are  to  pages] 

FOUND 

meaning  of,  340. 

FKIVOLOUS  ANSWER 

motion  for  order  overruling  same  may  be  disposed  of  on  rule  day  or  in 
vacation,  20. 

HABEAS  CORPUS  CUM  CAUSA 

meaning  of,  and  use  of,  in  removal  proceedings  of  writ  of,  323. 

HEARING  IN  EQUITY 
meaning  of,  382. 

HIGH  SEAS 

meaning  of,  337. 

HIGHEST  COURT  OF  A  STATE,  ETC. 

removal  to  the  supreme  court  from  the,  407. 

INFRINGEMENT  OF  LETTERS  PATENT 

district  in  which  suits  are  brought  for,  342. 

INJUNCTION 

refusal  by  district  court  of  motion  to  dissolve  same  is  appealable  to  cir- 
cuit court  of  appeals,  392. 
when  granted  or  continued,  388. 

INTEREST  COUPONS 

as  part  of  amount  in  controversy,  74, 

INTERLOCUTORY  DECREE 

extent  of  power  of  circuit  court  of  appeals  in  case  of  an  appeal  from  an, 

392. 
meaning  of,  385. 

no  appeal  to  supreme  court  from  decisions  of  circuit  court  of  appeals  in 
relation  to,  417,  418. 

INTERMEDIATE  ASSIGNEE 

effect  of  citizenship  of  on  right  to  sue  on  chose  in  action,  145. 

JUDGE 

procedure  in  recusing,  3.5. 

of  senior  circuit  ailowod  'o  -appoint  himself  to  serve  for  other  judge,  28. 

to  Horvo  for  otlior  jiKlge,  how  appointed,  26. 

when  fonccrncd  in  interest,  30. 

JUDGMENT 

within  what  time  it  may  \h:  sot  aside,  22. 


Index  723 

,   [references  are  to  pages] 

JURISDICTION 

effect  on  of  change  of  citizenship  for  purpose  of  bringing  action  in  federal 

court,  114. 
in  action  between  aliens,  129. 
in  general  of  circuit  court  of  appeals,  380. 
in  general  of  supreme  court,  380. 
must  appear  on  face  of  complaint,  12,  150. 
of   circuit   court    of   appeals    in    cases    involving    jurisdiction    of    federal 

court,  377. 
of  circuit  court  of  appeals,  when  same  depends  entirely  on  diversity  of 

citizenship,  381. 
of  district  court,   when  citizens  of   same   state  claim   land  under  grants 

from  different  states,  55, 
of  lower  federal  courts,  1, 

of  supreme  court  in  cases  involving  jurisdiction  of  federal  court,  377. 
over  all  of  case,  if  part  is  based  on  federal  question,  111. 
over  questions  raised  by  supplemental  bill,  111. 
•when  to  be  examined  into,  12. 
which  must  be  given  to  federal  courts,  1. 

JURISDICTION  OF  FEDERAL  JUDICIARY,  9. 

JURY 

meaning  of  trial  by,  406. 

LIENS 

what  actions  are  to  enforce  same,  or  to  remove  an  encumbrance,  lien,  oi 
cloud  on  property,  367. 

LOCAL  ACTIONS 
what  are,  362. 

MUNICIPAL  CORPORATION 
is  a  citizen,  136. 

NE  EXEAT 

when  grantable,  429. 

OFFICE 

when  suit  is  brought  to  recover  possession  of,  which  was  lost  because  of 
denial  of  right  to  vote,  191. 

OFFICER  OF  THE  UNITED  STATES 
what  is  meant  by,  54. 
when  there  is  action  to  recover  salary,  etc.,  of  an,  203. 

ORIGINAL  PROCESS  OR  PROCEEDING 
meaning  of,  355. 


724  Index 

[references  are  to  pages] 

PATENT  LAWS 

when  cases  arise  thereunder,  171. 

PAUPER  PETITIONER  IN  REMOVAL  PROCEEDING,  332. 

PENALTIES  AND  FORFEITURES 

when  a  suit  is  brought  for  the  enforcement  of,  179. 

PENDING 

when  pleadings,  proceedings  and  process  are,  37. 

PETITION 

for  removal  must  show  riglit  to  remove,  295. 

in  case  of  removal,  form  and  presentation  of,  and  effect  of  presentation 
of,  295. 

POSSESSION 

what  amounts  to,  437. 

PREJUDICE  OR  LOCAL  INFLUENCE 

amount  in  controversy  in  case  of  removal  on  ground  of,  251. 
courts  in  which  same  must  exist  to  give  right  to  removal,  265,  269. 
meaning  of,  263,  265. 

method  of  removal  on  ground  of,  274,  282. 

necessity  of  separable  controversy  in  the  case  of  removal  on  the  ground 
of,  254. 

PRESENCE  OF  THE  COURT 
when  one  is  within  the,  432. 

PRIZE 

meaning  of,  167. 

PROCESS 

pleadings,  proceedings,  when  same  are  pending,  148. 

PROHIBITION 

meaning  and  use  of  writ  of,  405. 

PROSECUTIONS 

what  typo  are  removable  under  section  33,  314,  319. 

PROVOST  r;OURT 

its  oHtablisluncnt  and  jurisdiction,  7. 

RECEIVER 

or  iiiaiiagcr  of  proiicrly  appoinlfd  by  federal  court,  actions  against,  372. 

RECIISK  .lUDOFO 

waiver  of  ri^jht  to,  28. 


Index  725 

[references  are  to  pages] 


RECUSING  JUDGE 
procedure  in,  35. 


RELATED 

by  affinity  or  consanguinity  within  the  degree  of  first  cousin,  meaning 
of,  372. 

EEM 

section  57  of  the  Judicial  Code  refers  only  to  actions  in,  367. 

REMOVAL 

amount  in  controversy  necessary  to  obtain,  229. 

by  alien,  262. 

by  which  party,  216. 

citizenship  of  parties  in  case  of,  220,  235,  248,  251,  254. 

court  to  which  there  may  be  a,  283. 

duty  of  state  court  in  case  of,  299,  305. 

effect  of  on  proceedings  in  state  court,  333,  336. 

effect  of  sham  parties  on  right  to,  222,  226. 

form  and  presentation  of,  and  effect  of  presentation  of  petition  in  case 
of,  295,  299. 

form  and  presentation  of,  and  effect  of  presentation  of  bond  in  ease  of, 
298,  299. 

it  is  only  of  a  suit  that  there  can  be  a,  208. 

number  of  persons  who  must  join  in  petition  for,  238,  251. 

of  supplemental  proceeding,  211. 

on  ground  of  federal  question,  215. 

on  ground  of  prejudice  or  local  influence,  method  of,  274,  282. 

on  ground  of  prejudice  or  local  influence,  necessity  of  separable  contro- 
versy in  case  of,  254. 

petition  for  must  show  right  to  remove,  295. 

prosecutions  under  section  33  capable  of,  314,  319, 

province  of  state  court  in  case  of  removal  under  section  29  of  the 
Judicial  Code,  305. 

residence  of  party  removing,  228,  238,  240,  245,  251. 

right  of  state  to  restrict  right  to,  205. 

time  when  there  must  be  diversity  of  citizenship  in  case  of,  230. 

time  within  which  same  must  be  made,  270,  284,  289,  290,  292,  311. 

waiver  of  right  not  to  have,  231. 

when  same  can  be  based  on  inability  to  enforce  right  under  equal  rights 
laws,  307. 

when  there  must  be  diversity  of  citizenship  in  order  to  get,  230. 

who  must  join  in,  254. 

REMOVAL  PROCEEDING 

meaning  of,  and  use  of,  writ  of  habeas  corpus  cum  causa  in,  323. 

pauper  petitioner  in,  332. 

power  of  deputy  clerk  in,  323. 

the  relation  of  the  writ  of  certiorari  to,  323,  332. 


726  Index 

[references  are  to  pages] 

EESIDENCE 

of  defendant  in  case  of  removal,  228,  240,  245, 
of  removing  party,  238,  251. 

EEVENUE 

what  is,  168. 

when  injured  on  account   of  act   done  for  the  protection  or  collection 
of,  184.  f 

EIGHTS,  ETC. 

secured  by  the  Constitution  of  the  United  States,  etc.,  when  action  brought 
to  redress  the  deprivation  of,  187. 

SEIZUEE 

meaning  of,  164. 

SEPAEABLE  CONTEOVEESY 
what  is  a,  235,  238. 

SHAM  PAETIES 

effect  of  on  right  to  remove,  222,  226. 

SPECIAL  BAIL 

meaning  of,  299. 

SPECIAL 

classes  of  cases  not  effected  by  section  51,  348. 
term,  how  appointed,  299,  305. 

STATE 

action  against  in  federal  court  by  citizen  of  that  state,  89. 

STATE  COUET 

duty  of  in  case  of  removal,  299,  305. 

effect  of  removal  on  proceedings  in,  333,  336. 

province  of  in  case  of  removal  under  section  29  of  the  Judicial  Code,  305. 

STATE  NOT  CITIZEN,  114 

SUIT 

meaning  of,  40. 

there  can  be  a  removal  only  of  a,  208. 

8UPPLEMENTy\L  HILL  i 

jurisdiction  of  federal  court  over  qnestioiiH  raised  by,  111. 


Index  727 

[references  are  to  pages] 

SUPPLEMENTARY  PROCEEDINGS 
district  within  which  one  brings,  356. 
removal  of,  211.  ' 

SUPREME  COURT 

certification  of  questions  hy  the  circuit  court  of  appeals  to  the,  413,  416. 

exclusive  jurisdiction  of,  400. 

jurisdiction  of  in  bankruptcy  matters,  425. 

jurisdiction  of  in  cases  involving  jurisdiction  of  federal  court,  377. 

jurisdiction  of  in  general,  380. 
jurisdiction  of  over  cases  relating  to  ambassadors,  etc.,  400, 

must  be  establiwhed,  1. 

no  appeal  from  decision  of  circuit  court  of  appeals  to  in  relation  to  inter- 
locutory  order,   418. 

removal  from  the  highest  court  of  a  state,  etc.,  to  the,  407. 

time   within  which  appeal  must  be   taken   from   the   court   of   claims   to 
the,  422,  423. 

when  appeals  and  writs  of  error  may  be  taken  from  the   district  court 
directly  to,  409. 

when  certification  of  cases  is  made  from  the  circuit  court  of  appeals  to 
the,  413,  415,  416,  417. 

when  circuit  court  may  be  directed  to  certify  cases  to  the,  416. 

TERM  or  COURT 
when  ended,  22. 

TERRITORY 

citizen  of  not  citizen  of  state  for  purpose  of  giving  federal  court  juris- 
diction, 105. 

TIME  WITHIN  WHICH 

appeal  must  be  taken  from  the  court  of  claims  to  the  supreme  court,  422, 

423. 
removal  may  be  made,  270,  284,  289,  290,  292,  311. 

TONNAGE  TAX 

meaning  of,   171. 

TORT 

when  action  against   United  States  sounds  in,  199. 

TRADE-MARK  LAWS 

when  cases  arise  thereunder,  173. 

TRIAL 

when  it  has  commenced,  18. 

UNLESS  OTHERWISE  PROVIDED 
meaning  of,  380, 


728  Index 

[refeeences  are  to  pages] 

UNITED  STATES 

right  to  sue  the,  197,  198. 
when  action   brought   by,   48. 

VACATION 

motion  for  order  overruling  frivolous  answer  may  be  disposed  of  on  rule 
day  or  in,   20. 

WAIVE  EIGHT 

to  be  sued  in  certain  district,  parties  may,  361. 

WAIVER  OF  EIGHT 

not  to  ha%'e  ease  removed,  231. 
to  recuse  judge,  28. 


INDEX  TO  JUDICIAL  CODE 

[references  are  to  pages.] 
ABATE 

when  action,  suit,  proceeding  or  process  not  to 447 

ACCUMULATION 

or    urgency    of   business    in    district    court,    appointment    of    other 
district   judge    in   case    of    449 

ACTION 

suit,  proceeding  or  process  in  district  court,  when  not  to  abate  or 
be  rendered  invalid    447 

ADJOURNED 

district   court,  when,  by  whom,  and  how 448 

ADJOURNMENT 

of   supreme   court    561 

powers  of  justices  of  supreme   court   during 562 

ADMIRALTY 

and  maritime  jurisdiction,  of  all  civil  causes  of,  district  court  has 
original  jurisdiction,  with   certain  rights  saved   to  suitors 453 

ADMISSION  OF  TERRITORY  AS  STATE 

transfer  of  records  in  such  case  from  territorial  to  federal  district 
court    474 

ALABAMA 

district    judge    for   middle    district    of,    district    judge    for    northern 

district   thereof    445 

judicial   districts   of,  term   of  court,   etc 494 

ALASKA 

where  cases  appealed  from  district  court  of  shall  be  heard 526 

district  court  of,  appellate  jurisdiction  of  circuit  court  of  appeals 
of  ninth  circuit  over  cases  arising  in    526 

729 


730  Index  to  Judicial  Code 

[references  are  to  pages.] 
ALIENS 

right   of  to  prosecute  claims  against  the  United   States 53S 

suits  by,  for  tort  in  violation  of  laws  of  nations  or  treaty  of  the 
United  States,  district  court  has  jurisdiction  of 455 

ALLOTMENT 

to  circuits  of  justices  of  the  supreme  court 521 

AMENDMENTS 

allowed   to  show   diversity   of  citizenship 577 

to  pleadings  allowed  to  conform   to  proper  practice 577 

APPELLATE  JUEISDICTION 

district  court  has,  of  judgments  and  orders  of  United  Commis- 
sioners in  cases  arising  under  the  Chinese  exclusion  laws 457 

district  court  has,  over  judgments  in  cases  of  conviction  of  certain 
commissioners  457 

APPEALS  AND  WRITS  OF  EREOR 

from  judgments  of  certain  courts  of  Hawaii  to  Supreme  Court  of 
United    States    565 

from  judgments  of  district  court  for  district  of  Alaska  to  Supreme 
Court  of  United  States  566,  567 

from  judgments  of  certain  courts  of  Porto  Rico  to  Supreme  Court 
of  United  States  564,  565 

none  allowed  from  decision  of  district  court  remanding  case  re- 
moved  from   state    court    458 

to  supreme  court  from  judgments  of  Court  of  Appeals  of  District 
of  Columbia    567 

APPEALS,  CIRCUIT  COURT  OF 

appeal  or  writ  of  error  to  supreme  court  in  cases  before 564 

may  certify  propositions  of  law  to  supreme  court   564 

supreme  court  may  require  cases  to  be  certified  to  it  from 564 

APPEALS 

from  judgments  of  circuit  court  of  appeals  to   supreme   court....   564 

from  judgments   of  court  of  claims   to  supreme  court 564 

from    orders    granting    interlocutory    injunction 574 

in  action  brought  in  the  court  of  claims  against  the  United  States 

Indian    tribes,   etc 539 

in  actions  brought  to  liave  accounts  with  United  States  settled...   539 
records  and  proceedings  of  court  of  appointed  previous  to  present 

constitution,  where  kept,  etc 557 

APPOINTMENT  OF  JUDGES 

effect   of  repeal   of  laws  providing   for    586 

ARIZONA 

judicin)  diHtricts  fif,  terms  of  court,  etc 478 


Index  to  Judicial  Code  731 

[refeeences  are  to  pages.] 
AKKANSAS 

judicial  districts  of,  terms  of  court,  etc 478 

ARRANGEMENT  OF  JUDICIAL  CODE 

no  inferences  of  construction  to  be  drawn  from 584 

ARRESTS  IN  CIVIL  ACTIONS 

where   made    469 

ASSIGNEE 

suit  by,  on  prormissory  note  or  other  chose  in  action 453 

ASSOCIATE  JUSTICES  OF  SUPREME  COURT 

their  precedence    556 

ATTORNEY  GENERAL 

distribution   of  reports   of   decisions   of   circuit   courts   of   appeals, 

circuit,  and  district  courts  by    560 

duties  of,  in  cases  coming  before  the  court  of  claims 540 

duty  to  distribute  copies  of  reports  of  decisions  of  supreme  court, 

report  by  him  in  relation  to  distribution 558,  560 

to  make  reports  of  cases  under  section  180 538,  539 

ATTORNEYS  AT  LAW 

may  manage  cases  of  clients  in  federal  courts 576 

AWARDS 

arbitrations   or   decrees   of   consul,  etc.,   of  foreign  nations,  power 
of  federal  judges,  etc.,  to   enforce 576 

BAILIFFS 

of  court  of  customs  appeals   543 

BANKRUPTCY 

matters  and  proceedings  in,  district  court  has  jurisdiction  of .  . .  .  456 
matters,  jurisdiction  of  circuit  courts  of  appeals  in  relation  thereto  525 
proceedings,  jurisdiction  of  supreme  court  in    568 

BEARER 

promissory  note   or  other  chose   in  action,  payable  to,  suit  on   by 
assignee    453 

BEGUN 

in  one  judicial   district   and   completed   in   another,   crimes,   where 
tried    467 

CALENDER 

of  court  of  customs  appeals   546 


732  Index  to  Judicial  Code 

[references  are  to  pages.] 
CALIFORNIA 

judicial  districts  of,  terms   of  court    480 

northern   district   of,  additional   district   judge   in 446 

CERTIORARI,  WRIT  OF 

when  issued  by  district  court  to  state   court   in  removal   cas3s...   466 

CHALLENGES 

peremptory,  number  allowed,  by  whom   tried    581 

for   cause   in  certain   cases    581 

CHIEF  JUSTICE 

to   appoint  judge  to  fill  place  of  disabled  district  judge,   or  when 

business  accumulates  or  is  urgent 448,  449 

vacancy  in   office   or,   or  inability   of    556 

when  to  appoint  circuit  judge  to  hold  district  court 450 

CHINA,  UNITED  STATES  COUET  FOR 

appellate  jurisdiction  of  circuit  courts  of  appeals  in  cases  begin- 
ning   in 525 

CIRCUIT  COURTS 

abolished     582 

disposition   of   cases  therein   when  said   courts   were   abolished....  583 

powers  and  duties  of  transferred  to  district  courts 583 

CIRCUIT  COURTS  OF  APPEALS 

appellate  jurisdiction  of 524,  525 

how  constituted  520,  521 

power  to  prescribe  style  of  seal,  form  of  writs,  etc.,  and  establish 

rules   and   regulations    522 

terms  of  court    523 

when  judgment   final    524 

CIRCUIT  JUDGE 

acting  as  judge  of  district  court,  power  to  act,  efTect  of  acts 451 

may  appoint  district  judge  to  aid  other  district  judges  wlien  busi- 
ness  accumulates    or   is   urgent    449 

senior,  to  appoint  district  judge  to  liold   district  court,  when 450 

to  a|)point  judge  to  fill  place  of  disahlcd  district  judge 448 

when    to    hold    district    court 450 

how  appointed,  salary,   where  must   reside,   duties 521 

CIRCUITS 

judicial,  haw   constituted    5P0 


Index  to  Judicial  Code  733 

[references  are  to  pages.] 
CIRCUIT  JUSTICE 

may  appoint  district  judge  to  aid  other  district  judge  when   busi- 
ness   accumulates   or   is    urgent    449 

meaning  of  in  section  dealing  with  circuit  courts  of  appeals 522 

to  appoint  judge  to  fill  place  of  disabled  district  judge 448 

when  to  appoint  circuit  judge  to  hold  district  court 450 

CITIZENS  OF  DIFFEEENT  STATES 

suits    between    453 

CITIZENS  OF  SAME  STATE 

claiming   lands   from   different   states,    suits   between,    district   court 
has  jurisdiction  of   453 

CITIZENS  OF  A  STATE 

suits  between,  and  foreign  states,  citizens,  or  subjects   of 453 

CIVIL  WAR 

claimants   for  payment   for  supplies   furnished   the  United   States 
during     539 

CLAIMS,  COURT  OF 

allegations  in  petition  in  case  brought  in  which  may  be  traversed 

by    government,    etc 534 

appeals  to  supreme  court  from  judgments  of    564 

bond   of   chief   clerk    of 529 

composition    528 

costs  arising  in  cases  in   533 

disbursement  of  money  by  chief  clerk  of 529 

form   of  petitiorn  in   case   in 534 

judges  of,  appointment,  tenure  of  office,  oath,  salary 528 

jurisdiction    of     529,    533,  535 

no  evidence  to  be  taken  in  certain  cases  in    535 

officers   etc.,   of    528 

power  of  judges  and   clerks   of  to  administer   oaths   and   affirma- 
tions,  etc 534 

power    to    establish    rules    of    court,    punish    contempts,    appoint 

commissioners,    etc 534,  535 

practice  of  member  of,  or  delegates  to  Congress,   or  resident  com- 
missioner in    529 

procedure  in,  in  cases  of  losses  by  paymasters 531 

procedure  in,  in  cases  referred  to  said  court  by  either  House  or 

Congress    532,  540 

procedure  in,  in  cases  referred  to  said  corurt  by  heads  of  execu- 
tive departments   531,  532,  540 


734  Index  to  Judicial  Code 

[references  are  to  pages.] 

CLAIMS,  COUKT  OF— Continued 

procedure   in  instances   where   the   government   when   sued  in   sets 

up    set-off   or    counterclaim    531 

reports  of  chief  clerk  of  529 

salaries   of  officers,  etc.,  of    529 

seal    528 

statute  of  limitations  against  bringing  action  in 533 

terms  of,  quorum,  number  necessary  to  decide  case 528 

CLEEKS 

and  deputy  clerks  of  federal  courts  not  to  practice  law 577 

assistant  clerk,  stenographic  clerks  of  court   of  customs  appeals..  542 

for  each   district   court    446 

of  circuit  courts  of  appeals,  liability  for  acts  of  deputy  clerks...  522 

of  circuit  courts  of  appeals,  powers  and   duties 522 

CLEEK  OF  DISTEICT  COUET 

district  court  when  adjourned  by    448 

duties  of,  when  eases  are  removed  from  state  to  federal  courts,  462,  463 

duty  of,  when  civil  causes  are  transferred 472 

duty  of,   when   criminal   causes   are   transferred 470 

duty  of,  when  there  are  defendants  residing  in  different  districts 

of  a  state    469 

how    appointed     446 

liability  for  defaults  or  misfeasances  of  a  deputy  clerk 447 

may    certify    disability    of   district   judge,   and    fact    of    accumula- 
tion or  urgency  of  business    448,  449 

issuance  of  habeas  corpus  cum  causa  by 462,  463 

to  appoint  deputy  clerks    447 

CLEEK  OF  STATE  COURT 

duty  of  in  instances  of  removals  of  cases  from  state  to  federal 

courts    461 

effect  of  his  failure  to  do  his  duty  when  cases  are  removed  from 
state  to  federal  courts  461,  463,  464,  466 

CLEEK  OF  SUPREME  COURT 

bond  of,  liability  on  same  for  default  of  deputy  clerks 556,  557 

how    appointed     556 

CLEEK  OR  IITS  DEPUTY 

when   may   and   may   not  be   appointed   receiver   or   master   in   any 
case    475 

COURT  OF  CLAIMS 

actions   in,  for  settlement  of  accounts   with    the  TTnited   States..  538 

a7)poalB    in    cases    in    539 

examination   of  witnesses   in   cases    in,    interrogatories 536 

fees   of  commissioners   f)f    537 


Index  to  Judicial  Code  .  735 

[repeeences  ark  to  pages.] 
COURT  OF  CLAIMS— Continued 

fraud  practiced  in,  in  establishing  claim  against  the  United  States  537 

may  issue  subpoenas,  their  force    536 

new   trials   granted   by    537 

power   of   commissioners   of,   to   administer   oath   or   affirmation...  536 

taxing  of  cost  of  printing  of  record  in  cases  in 537 

what  witnesses  not  excluded  in  cases  in 540 

COURT  OF  CUSTOMS  APPEALS 

clerk  of,  assistant  clerk  of,  stenographic  clerk  of 533 

is   a    court    of   record    543 

its  powers,  including  that  of  deciding  cases 543-545 

marshals    of    542 

sessions    of    541 

transfer  of  cases  to   545 

COLORADO 

judicial   districts   of,   terms   of   court 480 

COLUMBIA,  COURT  OF  APPEALS  OF  DISTRICT  OF 

appeals  and  writs  of  error  to  supreme  court  from  judgments  of.  .   567 
certification  of   cases   to  supreme   court   from 568 

COMMERCE  COURT 

abolished  by  Act  of  October  22,  1913   (38  Stat.  L.  219) 

CONDEMNATION  OF  PROPERTY 

taken  as  prize,  district  court  has  original  jurisdiction   of  all  pro- 
ceedings  for    453 

used    to    aid    insurrection    against    United    States,    proceeding    for 
where    prosecuted    468 

-  CONNECTICUT 

judicial   districts  of,   terms  of  coTirt    481 

CONSTITUTION  OF  THE  UNITED  STATES 

suits    arising   under    453 

CONSTRUCTION  OF  JUDICIAL  CODE   583,  554 

CONSULS  AND  VICE  CONSULS 

suits  against,  district  court  has  jurisdiction   of 456 

CONTEMPTS 

power  of  federal  courts  to  punish    575 

CONTRACT  LABOR  LAWS 

district    court    has   jurisdiction    of   suits   and   proceedings    arising 
under    457 


-    736  Index  to  Judicial  Code 

[references  are  to  pages.] 
CONTEOVEESY 

matter  in,  what  must  be  to  give  district   court  jurisdiction 453 

CO?YEIGHT  LAWS 

district  court  has  original  jurisdiction  of  all  cases  arising  under..   454 

COEPOEATION 

promissory  note  or  other  chose  in  action,  payable  to,  suit  on....  453 

COSTS 

in  cases  arising  in  the  Court  of  Claims    533 

COUESE 

process,  etc.,  not  grantable  of,  when,  where,  and  by  whom  made, 
etc 448 

COMMEECE 

district  court  has  original  jurisdiction  of  all  suits  and  proceedings 
arising    under    any    law    regulating,    except 454 

COMMISSION  OF  COUET  OF  CLAIMS 

fees  of    537 

COMMISSIONER 

appointment  and  powers  of,  before  whom  appraisers  of  seized  ves- 
sels,   etc.,   may   be    sworn    474 

power  of  to  administer  oath  or  affirmation  in  cases  in  court  of 
claims    536 

of  court  of  claims  to  hear  evidence  in  certain  cases 536 

CEIMES 

and  offenses  cognizable  under  authority  of  the  United  States, 
district  court  has  original  jurisdiction  of 453 

CEIER 

appointed  by  district  court   447 

CRIMINAL  CASES 

precedence  of  in  supreme  court   569 

CRIMINAL  PEOSECUTIONS 

where    Ijrouglit     470 

CUSTOMS  APPEALS 

bailiffs    of    court    of    543 

calendar  of  court   of    546 

conHtitiition  of,  ajipointinciit   (;i'  judges  oC  mid   tlieir  siilary,  quorum 

of,  (liHal)ility  of  judges  of,  travelling  exjx'UHi'a  of  judges  of.  .  .  .  541 

meHSfiigcr  of  court  of    543 

r('i)orttT    of    court    nt'    543 


Index  to  Judicial  Code  737 

[references  are  to  pages.] 

DATE  ON  WHICH  JUDICIAL  CODE  TOOK  EFFECT 587 

DEATH 

of  clerk  of  district  court,  who  performs  duties  thereafter 447 

of   offenses   punishable   with,   where    tired 467 

DEBENTURE  FOR  DRAWBACK  OF  DUTIES 

district  court  has  jurisdiction  of  all  suits  by  assignee  on 454 

DEFENDANT 

when,  may  remove  cases  from  state  to  federal  court 458 

DELAWARE 

judicial   districts   of,   terms   of   court 481 

DEPUTY  CLEBK  OF  CIRCUIT  COURT  OF  APPEALS 

appointment,  removal,  duties    522 

DEPUTY  CLERK  OF  DISTRICT  COURT 

duties  after  death  of  clerk    447 

horw    appointed     447 

how  removed    447 

to    reside    where    447 

DEPUTY  CLERK  OP  SUPREME  COURT 

how  appointed  and  removed,  duties  of   557 

DISCHARGE  OF  UNITED  STATES  FROM  LIABILITY 538 

DISTRICT 

in  which  land  is  situate,  partition  suits  brought  in 457 

DISTRICT  COURTS 

adjourned,  when,  by  whom,  and  how    448 

appellate  jurisdiction,  when    457 

cases  taken  to  the  supreme  court  directly  from   56S 

judges  of,  as  judges  of  circuit  courts  of  appeal 521 

may   appoint   crier    447 

open  as  courts  of  admiralty  and  equity  for  purpose  of  filing  plead- 
ings,   etc 448 

original  jurisdiction,  when    453,  457,  458 

powers  and  duties  of  circuit  courts  transferred  to 583 

to  hold  adjournments,  when  and  for  what  purpose 448 

DISTRICT  JUDGE 

disabled,  how  judge  is  appointed  to  fill  his  place 448 

guilty    of  high    misdemeanor    446 

holding  court  in  other  than  own  district,  power  to  act 451 

may  make,   direct,  award  process,   etc.,   not   grantable    of   course, 

when  and  where   448 

Wheaton  C.  F.  P. — 47 


738  Index  to  Judicial  Code 

[references  are  to  pages.] 
DISTRICT  JUDGE— Continued 

office   of   vacant,   proceedings   when 451 

party  in  interest  in  suit,  etc.,  proceedings  when 451 

personal  bias  or  prejudice,  proceeding  when   451 

salary  of    446 

shall  reside  in  district,  or  one  of  districts  for  which  appointed...  446 

DISTRICTS     IN     WHICH     CIVIL     ACTIONS     ARE     GENERALLY 

BROUGHT   469,  470 

DIVERSITY  OF  CITIZENSHIP 

amendment  allowed  to  show   577 

DIVERSION 

of  business  in  district  having  more  than  one  district  judge 452 

EXCLUSIVE  JURISDICTION 

of  courts  of  United  States    570 

EXECUTOR 

or  administrator  of  clerk  of  district  court,  remedy  against  deputy 
clerks    447 

EXEMPTIONS 

of  jurors    577 

EXPENSES 

of  federal  judges  while  traveling  571 

EQUITABLE 

defenses  allowed  in  actions  at  law   577 

EQUITY 

when  suits  in  shall  not  be  sustained   575 

EQUAL  RIGHTS  OF  CITIZENS  OF  THE  UNITED  STATES 

or  of   all   persons   within   jurisdiction   of,   district   court   has  juris- 
diction of  all  suits  brought  to  redress  deprivation  of,  etc 455 

FACTS 

issues  of  in  supreme  court,  when  tried  by  jury  562 

FEDERAL  COURTS 

jjowcr  of  to  administer  oaths  and  punish  contempts 575 

FEES 

chargi^d    by    flcrk    of   .sii[)r('ino    court,    tiihlcs    of    may    bo    prepared 
by    Hiii»rcm<'   court    557 


Index  to  Judicial  Code  739 

[refeeences  are  to  pages.] 
FELONIES 

committed  in  Yellowstone  National  Park,  district  court  for  district 
of  Wyoming  has  jurisdiction  of    457 

FLORIDA 

judicial  districts  of,  terms  of  court,  etc 481 

FOREIGN  BILLS  OF  EXCHANGE 

suit  on  by  assignee    453 

FOREMAN 

of  grand  jury    580 

FRAUD 

used  in  establishing  claim  against  the  United  States 537 

GEORGIA 

judicial  districts  of,  terms  of  court,  etc 48y 

GRAND  JURY 

foreman  of 580 

panel  how  completed   580 

when,  and  how,  summoned    580 

when  discharged    581 

HABEAS  CORPUS  CUM  CAUSA 

writ  of,  when  issued,  and  the  effect  of  such  issuance 462 

HAWAII 

appeals  and  writs  of  error  to  Supreme  Corurt  of  United  States 
from  judgments  of  certain  courts  of   565 

cases  certified  to  Supreme  Court  of  United  States  from  certain 
courts  of    565 

HIGH  SEAS 

or  elsewhere  out  of  jurisdiction  of  any  particular  district,  offenses 
committed  upon,  where  tried    467 

IDAHO 

judicial  districts  of,  terms  of  court,  etc 484 

ILLINOIS 

judicial  districts  of,  terms  of  court,  etc 484 

northern  district  of,  additional  district  judge  in 446 

IMMIGRATION  OF  ALIENS 

district  court  has  jurisdiction  of  suits  and  proceedings  arising 
under   laws   regulating    457 


740  Index  to  Judicial  Code 

[references  are  to  pages.] 
IMPORTS  GN  TONNAGE 

of  all  cases  arising  under  any  law  providing  revenue  from,  district 
court  has  original  jurisdiction,  except   454 

INCLOSUEE 

unlawful,  of  public  lands,  district  court  has  jurisdiction  of  pro- 
ceedings in  equity,  by  writ  of  injunction,  to  restrain  violation 
of  laws  of  the  United  States  to  prevent 457 

INDIAN  BLOOD  OR  DESCENT 

persons  of,  district  court  has  jurisdiction  orf  actions,  suits  or  pro- 
ceedings involving  right  of  same  to  allotments  of  land 457 

INDIAN  RESERVATIONS  IN  SOUTH  DAKOTA 

district  court  of  the  district  of  South  Dakota  has  jurisdiction  of 
certain  criminal   cases  arising  in    458 

INDIANA 

judicial  districts  of,  terms  of  court,  etc 486 

INFERENCES 

of  construction  not  to  be  drawn  from  arrangement  of  Judicial 
Code    584 

INFRINGEMENT  OF  LETTERS  PATENT 

suits  brought  for,  where  prosecuted   468 

INHABITANTS 

procedure  in  cases  in  which  some  parties  are  not  of  district,  ot 
are  not  found  therein,  or  do  not  appear 469 

INJUNCTIONS 

by  whom,  and  when,  granted    ^. 573 

INTEREST  ALLOWED 

in  claims  against  the  United  States    538 

INTERLOCUTORY  INJUNCTIONS 

when,  and  by  whom,  granted    574 

INTERLOCUTORY  ORDERS  OR  DECREES 

when  appeal  therefrom  may  be  taken  to  the  circuit  courts  of 
appeals    525 

INTERNAL  REVENUE 

district  court  h.'ia  origin.il  jurisdiction  of  all  cases  arising  under 
any   law  providing   for,  except    454 

INTERROGATORIES 

in    rnaoH    in    court   of   claims    536 


Index  to  Judicial  Code  741 

[references  are  to  pages.] 
IOWA 

judicial  districts  of,  terms  of  court,  etc 486 

JUDGE     . 

any,  of  circuit  courts  of  appeals,  powers  and  duties  of  as  to  allow- 
ances of  appeals  and  writs  of  error 525 

of  court  of  customs  appeals,  appointment,  salary,  disability,  quorum, 
travelling   expenses    of    541 

of  federal  courts  not  to  practice  law  571 

"JUDGE" 

when  applied  generally  to  any  circuit  includes  justices  of  the 
supreme   court    522 

JUDGMENT  AGAINST  UNITED  STATES 

effect   of    538 

JUDICIAL  CODE 

construction  of 583,  584 

date  on  which  it  took  effect   587 

no  inferences  of  construction  to  be  drawn  from  arrangement  of.  .   584 

"JUDICIAL  CODE,  THE" 

to  be  name  of  act   584 

JURISDICTION 

actions  as  to  which  it  is  exclusively  in  the  courts  of  the  United 
States    570 

JURISDICTION  OF  SUPREME  COURT    562-568 

JURORS 

how  drawn    578 

persons  not  barred  from  being  because  of  race,  color,  or  previous 

condition   of  servitude    579 

qualifications   and   exemptions   of    578 

return  of   579 

JURY 

trial  by  in  supreme  court  in  what  cases   562 

right  to  trial  by,  in  certain  cases  in  district  court  against  the 
United  States  456 

"JUSTICE  OF  CIRCUIT" 

meaning  of  in  section  dealing  with  circuit  courts  of  appeals 522 

JUSTICES  OF  THE  SUPREME  COURT 

allotment  to  circuits    521 

as  judges  of  circuit  courts    521 

salary  of 556 


742  Index  to  Judicial  Code 

[references  are  to  pages.] 
KANSAS 

judicial  districts  of,  terms  of  court,  etc 488 

KENTUCKY 

judicial  districts  of,  terms  of  court,  etc 488 

LAW 

equitable  defenses  allowed  in  actions  at  law   577 

of  the  United  States,  suits  arising  under    453 

legal  or  equitable  proceedings  in  cases  to  enforce  or  to  remove  in- 
cumbrance, lien  or  cloud  on  the  title  to  property,  when  one  or 
more  of  defendants  is  not  inhabitant  of,  etc.,  district  where 
action   is  brought 471 

LIENS  UPON  PEOPEETY 

effect  of  territorry  being  transferred  from  one  district  or  division 
to  another,  upon,  and  proceedings  in  such  cases 473 

LIMITATIONS,  STATUTE  OF 

against  bringing  actions  in  court  of  claims    533 

in  cases  of  actions  against  the  United  States  in  the  district  court.  456 

LOCAL  NATUEE,  SUITS  OF 

procedure  in,  where  brought   470 

LOUISIANA 

judicial  districts  of,  terms  of  court,  etc 490 

LOYALTY 

proof  of  in  cases  brought  in  court  of  claims 535 

MAINE 

judicial  districts  of,  terms  of  court,  etc 491 

MARSHAL  OF  DISTRICT  COURT 

when   district  court   adjourned  by    448 

MARSHAL  OF  SUPEEME  COUET 

salary  and  duties  of    557 

MAERHALS 

and  deputy  marshals  of  federal  courts  not  to  practice  law 577 

duties  of  when  cases  are  removed  from  state  to  federal  courts,  462,  463 

may  appoint  persons  to  wait  on  grand  and  other  juries,  etc 447 

of  court  of  customs  appeals 542,  543 

powers  and  duties 522,  524 

MARYLAND 

district  of,  additional  district  judge  in    ...  446 

judicial   districts  of,   terms   of  court,  etc 491 


Index  to  Judicial  Code  743 

[refeeekces  are  to  pages.] 
MASSACHUSETTS 

judicial  districts  of,  terms  of  court,  etc 492 

MESSENGER 

of  court  of  customs  appeals 543 

MICHIGAN 

judicial  districts  of,   terms  of  court,  etc 492 

MINNESOTA 

district  of,  additional  judge  in    446 

judicial  districts  of,  terms  of  court,  etc 493 

MISSISSIPPI 

judicial  districts  of,  terms  of  court,  etc 494 

northern  and  southern  districts,  one  district  judge  for   446 

MISSOURI 

judicial  districts  of,  terms  of  court,  etc 496 

MONTANA 

judicial  districts  of,  terms  of  court,  etc 497 

NAME  OF  ACT  TO  BE 

"The   Judicial   Code"    584 

NATIONAL  BANKING  ASSOCIATIONS 

action  brought  by  United  States,  or  by  direction  of  officer  thereof 

against  or  to  wind  up  affairs  of,  district  court  has  jurisdiction 

of  455 

deemed  citizens  of  states  in  which  they  are  located  for  purposes 

of  certain  actions  brought  by  and  against  them 455 

proceedings  by  to  enjoin  comptroller  of  currency,  where  brought  469 
suit  against  comptroller  of  currency,  or  receiver  acting  under  his 

direction  brought  by,  district  court  has  jurisdiction  over 455 

NE  EXEAT 

writs  of,  when,  and  by  whom,  issued  573 

NEBRASKA 

district  of,  additional  district  judge  in 446 

judicial  districts  of,  terms  of  court,  etc 498 

NEVADA 

judicial  districts  of,  terms  of  court    499 

NEW  DIVISION  OR  DISTRICT  CREATED 

place  of  trying  cases  in  such  instances   473 


744  Index  to  Judicial  Code 

[references   ABE   TO   PAGES.] 

NEW  HAMPSHIRE 

judicial  districts  of,  terms  of  court,  etc 499 

NEW  JERSEY 

district  of,  additional  district  judge  in 446 

judicial  districts  of,  terms  of  court,  etc 499 

NEW  TRIALS 

granted    by   court    of   claims    537 

power  of  federal  courts  to  grant   575 

NEW  YORK 

eastern  district  of,  additional  district  judge  in    446 

judicial  districts  of,  terms  of  court,  etc 500 

southern  district  of,  three  additional  district  judges  in 446 

NON-JOINDER  OF  PARTIES  NOT  INHABITANTS 

OT  not  found  in  district,  effect  of   469 

NORTH  CAROLINA 

judicial  districts  of,  terms   of  court,  etc 501 

NORTH  DAKOTA 

judicial  districts  of,  terms  of  court,  etc 503 

OATH 

to  be  taken  by  federal  court  judges    571 

OATHS 

power  of  federal  courts  to  administer    575 

OBLIGORS 

to  the  United  States  who  may  have  their  accounts  with  the 
United  States  settled  in  the  court  of  claims 538 

OFFENSES 

committed  and  penalties,  etc.,  incurred  prior  to  taking  effect  of 
Judicial   Code  not  effected   thereby    58T 

OFFICE 

suit  to  recover,  based  upon  denial  of  right  to  vote  on  account  of 
race,  color,  or  previous  condition  of  servitude,  district  court 
has  jurisdiction   over 455 

OFFICERS  OF  UNITED  STATES 

suits  ])y,  when  district  court  has  jurisdiction  of   453 

OHIO 

judicial  dlHtricts  of,  terms  of  court,  etc 503 

northern   and   southern   districts   of,  addit iinml   district  judge   in..   440 


Index  to  Judicial  Code  745 

[references  are  to  pages.] 
OKLAHOMA 

judicial  districts  of,  terms  of  court,  etc 505 

OPEN 

district  courts  as  courts  of  admiralty  and  equity  for  purpose  of 
filing  pleadings,   etc 448 

OREGON 

district  of,  additional  district  judge  in    446 

judicial  districts  of,  terms  of  court,  etc 506 

PARTIES 

may  manage  own  cases  in  federal  courts   576 

PARTITION  OF  LANDS 

district  court  has  jurisdiction  of  suits  in  equity  relating  to,  when 
United  States  is  common  or  joint  tenant  of  said  land 457 

PATENT  LAWS 

district  court  has  original  jurisdiction  of  all  cases  arising  under.  .   454 

PAYMASTERS,  ETC. 

procedure  in  cases  of  losses  by   531 

PEACE 

power  of  federal  and  state  officials  to  hold  persons  to  security  of. .   575 

PENALTIES  AND  FORFEITURES 

incurred  under  any  law  of  the  United  States,  district   court  has 
original  jurisdiction  of  all  suits  and  proceedings  for  enforcement 

of  454 

pecuniary,   where   sued   for    468 

PENDING  PROCEEDINGS,  ETC. 

effect  of  repeal  of  existing  laws  on   586 

PENNSYLVANIA 

eastern  and  western  districts  of,  additional  district  judge  in....   446 
judicial  districts  of,  terms  of  court,  etc 506 

PENSION 

of    federal    judges    571 

PEREMPTORY  CHALLENGES 

number  allowed,  by  whom  tried    581 

PETIT  JUROR 

to  serve  only  one  term  a  year 581 

PETIT  JURY 

panel    how    completed     580 


746  Index  to  Judicial  Code 

[refeeences  are  to  pages.] 

PETITION 

farm  of,  in  case  in  court  of  claims 534 

PHILIPPINE  ISLANDS 

jurisdiction    of   supreme    court    of  United    States    over   judgments 
of  supreme   court   of    566 

PORTO  EICO 

appeals  and  writs  of  error  to  supreme  court  of  United  States  from 

certain  courts  of   564,  565 

cases   certified    to    supreme    court    of   United    States   from    certain 

courts   of    565 

POSTAL  LAWS 

district  court  has  original  jurisdiction  of  all  eases  arising  under, .   454 

POWERS  OF  COURT  OF  CUSTOMS  APPEALS 

including  that  of  deciding  cases 543-545 

PREJUDICE 

effect  of  removal  of  cases  from  state  to  federal  courts  on  ground 

of     458 

manner  of  removal  of  cases  from  state  to  federal  courts  on  ground 

of     458 

or  personal  bias  of  district  judge,  proceeding  in  ease  of 451 

removal  of  cases  from  state  to  federal  courts  on  ground  of 458 

PRINTING  OF  RECORD 

cost  of,  how  taxed  in  cases  in  corurt  of  claims 537 

cost  of,  how  taxed  in  cases  in  supreme  court 569 

PRIZES 

brought  into  the  United  States,  district  court  has  original  juris- 
diction   of   all    453 

PROCESS 

mesne  and  final,  where  may  be  served  and  executed   470 

PROMISSORY  NOTE 

or  other  chose  in  action,  suit  on,  in  favor  of  any  assignee 453 

QUALIFICATIONS 

of  jurors    578 

RACE,  COLOR,  OR  PREVIOUS  CONDITION  OF  SERVITUDE 

suit  to  recover  office  based  upon  denial  of  right  to  vote  on  account 
of,  district   court  has  jurisdiction  of    455 

RECEIVER  OR  MANAGER  OF  PROPERTY 

duty  of,  and  effect  of  faihiro  to  perform  duty   475 

wlion    ;itii|    liow    ho    inny    be    siiod     475 


Index  to  Judicial  Code  747 

[referencks  ark  to  pages.] 
BECEIVER,  POWERS  OF,  ETC. 

where  property  involved  lies  in  different  states  in  same  judicial 
circuit     471 

RECORD 

court  of  customs  appeals  a  court  of  543 

RECORDS 

of  district  court,  where  kept 447 

REFERENCES 

to  laws  revised  or  embraced  in  Judicial  Code   583 

RELATIVES  OF  JUDGE 

within  certain  degrees  not  to  be  officer  or  have  any  duty  in  his 
court    475 

REMANDED 

when    cases,    which    were    removed    from    state    to    federal    courts 
may  be    458,   461,   465 

REMOVAL  OF  CASES  FROM  STATE  TO  FEDERAL  COURTS 

causes   for    458,  461,  463 

effect   of    461,   463,   465 

manner  of    458,  460,  461,  463-465 

to   what   court   made 470 

REI>IOVAL  OF  CERTAIN  CASES 

relating    to    common    carriers    from    state    to    federal    courts    not 
allowed    458 

REMOVE 

who  may,  cases  from  state  to  federal  courts 458,  461,  463,  464 

REPEAL  OF  EXISTING  LAWS 

effect  of  on  pending  proceedings,  etc 586 

REPEAL  OF  LAWS 

providing  for  appointment  of  judges,  effect,  of    586 

REPEALING  PROVISIONS    584,  587 

REPLICATIONS 

when    allowed    577 

REPORTER 

of  court  of  customs  of  appeals    543 

REPORTER  OF  SUPREME  COURT 

salary  of    558 

to   publish   decisions   of   that    court,    charges   allowed    for   printed 
decisions,  etc 557,  558 


748  Index  to  Judicial  Code 

[references  are  to  pages.]    • 
KEPOKTS 

of  decisions  of  supreme  court  delivered  by  publishers  to  attorney 
general    560 

EESIDENCE 

official,  of  federal  judges    571 

EESTEAIOTNG  ORDEES 

when,  and  by  whom  granted 573,  574 

EESTEAINTS  AND  MONOPOLIES 

district    court    has   jurisdiction    of    suits    and    proceedings    arising 
under  laws  to  protect  trade  and  commerce  against 457 

EEVIEW 

of  judgment   allowed  when   equitable   defenses   are  interposed  in 
actions  at  law   577 

EEVISED  STATUTES 

construction  of  Judicial  Code  governed  by  first  five  sections  of. .   583 

EHODE  ISLAND 

judicial  districts  of,  terms  of  court    507 

SCIEE  FACIAS 

writs  of,  when  and  by  whom  issued   573 

SECOND  CIECUIT 

when,  how  and   by  whom   district   judge   of  another   circuit  may 
be  appointed  to  hold  district  court  therein 450 

SEIZUEES 

on  land  or  water  not  within  admiralty  and  maritime  jurisdiction, 

district  court  has  original  jurisdiction   of  all 453 

proceedings  on  for  forfeiture,  where  prosecuted 468 

SERVICE 

of  process  in  proceedings  in  equity  by  writ  of  injunction  to  pre- 
vent   unlawful    inclosure    of   public    lands 457 

SESSIONS  OF  COTJET  OF  CUSTOMS   APPEALS 541 

SET  OFF  OR  COUNTER  CLAIM 

procedure  in  case  such  is  set  up  by  the  government  in  action  against 
the    government     531 

SLAVE   TRADE 

diHtrict  court  has  original  jurisdiction  of  all  suits  arising  under  any 
law     rcl.'if  ing     to '*^'** 


Index  to  Judicial  Code  749 

[REP2RENCES   ARE   TO   PAGES.] 

SOUTH  CAROLINA 

eastern  and  western  districts  of,  one  district  judge  for 446 

judicial   districts   of,   terms   of   court,   etc 507 

SOUTH  DAKOTA 

judicial  districts  of,  terms  of  court,  etc 508 

SPECIAL  JURIES 

by  whom  and  how,  returned 580 

SPECIAL  TERM 

when,   where,  and   for  what  purpose  held 448 

STATE  COURTS 

effect  of  proceeding   in   same  upon   hearing  in   relation   to   inter- 
locutory   injunction     574 

their  duty  in  cases  removed  from  state  to  federal  court ....  460,  461,  463 
when  actions  may  be  taken  to  supreme  court  of  the  United  States 
from    562 

SUBPOENAS  ISSUED  BY  COURT  OF  CLAIMS 

their   force    536 

SUPREME  COURT  OF  UNITED  STATES 

adjournment  of    561 

appeals  and  writs  of  error  from  judgments  of  Court  of  Appeals  of 

District  of  Columbia  to 567 

appeals  and  writs  of  error  from  judgments  of  district  court  for 

district  of  Alaska  to 566,  567 

appeals   and   writs   of   error   to    in    cases   before   circuit   court   of 

appeals    564 

appeals  from  judgments  of  court  of  claims  to 564 

bond  of  clerk  of,  liability  on  same  for  default  of  deputy  clerks,  556,  567 

cases  certified  from  courts  in  Porto  Rico  and  Hawaii  to 565 

cases  taken  from   district   court  directly  to 563 

certification   of   cases   from   Court  'of   Appeals   of  District   of  Co- 
lumbia  to    568 

clerk  of,  how  appointed 556 

constitution   and    quorum    of 556 

deputy  clerk  of,  how  appointed  and  removed,  duties  of 557 

jurisdiction  of 557,  562,  563,  568 

jurisdiction  of  in  bankruptcy  proceedings  of 568 

jurisdiction    of    over   judgments    of    Supreme    Court    of   Philippine 

Islands    566 

may  prepare   tables  of  fees   to   be   charged   by  clerk   of  supreme 

court    557 

may  require  cases  certified  to  it  from  circuit  court  of  appeals. .  .  .   564 

power  to  appoint  clerk,  marshal  and  reporter 556 

powers  of  justice  of  during  adjournments  of 562 


750  Index  to  Judicial  Code 

[repeeences  are  to  pages.] 
SUPREME  COURT  OF  UNITED  STATES— Continued 

precedence  of  associate  justices   of 556 

precedence   of  criminal   cases   in 569 

propositions  of  law  may  be  certified  by  circuit  courts  of  appeals  to  564 
reporter  of  to  publish  decisions,  charges  allowed  for  private  deci- 
sions,   etc 557 

reports  of  decisions  orf  to  be  distributed  by  attorney  general,  re- 
port in  relation  tliereto 558,  560 

salary  and  duties  of  marshal  of 557 

salary  of  justices  of 556 

salary  of  reporter  of 558 

taxing  of  cost  of  printing  record  in  case  before 569 

terms  of  561 

vacancy  in  office  of,  or  inability  of  chief  justice  of 556 

when  cases  may  be  taken  from  state  courts  to 562 

women   may   practice   before 569 

SURETIES  ON  BOND  OF  CLERK  OF  DISTRICT  COURT 

liability  foe  defaults  or  misfeasances  of  deputy  clerks 447 

TAXES 

accruing  under  internal  revenue  law,  where  sued  for 468 

TENNESSEE 

eastern  and  middle  districts  of,  one  district  judge  for 446 

judicial  districts  of,  terms  of  court,  etc 509 

TERMS    OF    SUPREME    COURT' 561 

TESTIMONY  IN  CASES  IN  COURT  OF  CLAIMS 

where  taken    536 

TEXAS 

judicial  districts  of,  terms   of  court,  etc 511 

"THIS  TITLE" 

meaning  of   583 

TRADE  AND  COMMERCE 

district  court  has  jurisdiction  of  suits  and  proceedings  to  protect 
same  against  restraints  and  monopolies 457 

TRADE-MARK  LAWS 

district  court  has  original  jurisdiction  of  all  cases  arising  under..  454 

TRANSFER 

in  civil   causes    472 

in  criminal    causes    470 

of  casi's  from   territorial   to   federal  district  court 475 

i/f  caHCH  to  the  court    of  (nistoins   a|>i)('als 545 


Index  to  Judicial.  Code  751 

[references  are  to  pages.] 
TREATIES 

made  under  authority  of  constitution  or  laws  of  the  United  States, 
suits    arising    under 453 

TRIAL 

or  hearing  of  cause  in  district  court,  when  not  stayed  or  discon- 
tinued      447 

UNITED  STATES 

action  brought  by  or  by  direction  ot  officer  thereof,  against  na- 
tional banking  association,  to  wind  up  affairs  of,  district  court 

has  jurisdiction   of 455 

district  court  to  have  concurrent  jurisdiction  with  court  of  claims 

in  certain  actions  against 456 

exclusive  jurisdiction  of  courts  of 570 

officers  of,  suits  by,  when  district  court  has  jurisdiction  of 453 

suits  by,  when  district  court  has  jurisdiction  of 453 

UTAH 

judicial  districts  of,  terms  of  court,  etc 514 

VACANT 

office  of  district  judge,  proceedings  when 452 

VENIRE  FACIAS 

by  whom,  and  how,  served 579 

VERMONT 

judicial  districts  of,  terms  of  court,  etc 514 

VIRGINIA 

judicial  districts  of,  terms  of  court,  etc 515 

WASHINGTON 

judicial  districts  of,  terms  of  court,  etc 516 

western  district  of,  additional  district  judge  in 446' 

WEST  VIRGINIA 

judicial  districts  of,  terms  of  court,  etc 517 

WISCONSIN 

judicial  districts  of,  terms  of  court,  etc 518 

WITNESSES 

examination  of,  in  court  of  claims 536 

what,  not  excluded  in  cases  in  court  of  claims 540 

WOMEN 

may  practice  before  supreme  court ^^^ 


752  Index  to  Judicial  Code 

[references  are  to  pages.] 
WKITS 

when,  and  by  whom,  issued 573 

WYOMING  AND  YELLOWSTONE  NATIONAL  PAEK 

judicial  district  of,  terms  of  court,  etc 519 

YELLOWSTONE   NATIONAL  PARK 

part  of  district  of  Wyoming 519 


INDEX  TO  EQUITY  RULES 

[references  are  to  pages.] 
ACCOUNTS 

form  of  before  master 618 

AFFIRMATION 

in  lieu   of  oath 623 

AMENDMENTS 

when  granted 60.5,  607,  608 

ANSWER 

contents  of    608 

effect  of  failure  to 608 

insufficiency  of  how  tested,  amendment  of 609 

insufficiency  thereto  how  determined 609 

time    for     604 

time  in  which  same  must  be  entered  to  amended  bill 609 

APPEAL 

proceedings  in  case  of 621 

record  on 621,  622 

ASSISTANCE 

use  of  writ  of 602,  603 

ATTACHMENT 

use  of  writ  of 602,  603 

BILL  OF  COMPLAINT 

contents  of  606 

CERTAIN 

pleadings  made  more 605 

CHAMBERS,  ETC. 

order  of  district  court  at 601 

CLERK'S  OFFICE 

when  open  and  for  what  purposes 601 

CONTINUANCES 

to  another  time  in  same  term,  to  another  term 6i5 

Wheaton  C.  F.  P.— 48  753 


754  Index  to  Equity  Rules 

[references  are  to  pages.] 
COSTS 

in  case  exceptions  to  master 's  report  are  overruled 619 

COUNSEL 

signature    of   to    pleadings 606 

COUNTERCLAIM 

how  made,  effect  of 608 

DEATH 

of  either  party,  revivor  in  case  of 612 

DECREES  AND  ORDERS 

contents  of   620 

DECREES  OR  DECRETAL  ORDERS 

correction  of  clerical  mistakes,  etc.,  in 620 

DEFAULT 

in  case  there  is  no  answer 604 

DEFECT  OF  PARTIES 

procedure  in  case  of  objection  on  ground  of 611 

DEFENSES 

how  presented    607 

DEFICIENCY 

decree  for  enforcement  of  in  foreclosures,  etc 603 

DEPOSITIONS  AND  AFFIDAVITS 

when  deemed  published,  when  allowed  after  time  for  taking  and 

filing  depositions  has  expired 615 

when  allowed,  notice  to  parties,  how  taken 612-614 

DISTRICT  COLTITS 

as  courts  of  equity  always  open  for  certain  purposes 601 

when   may   make   additional   rules 623 

"EQUITY  DOCKET"  REPORT 

Ity   clerk   of  district   court 601 

"EQUITY  JOURNAL" 

krpt  by  clerk  of  rlistrict  court 601 

EQUITY  TPTALS 

evidence  in  how  taken,  objections  thereto 612 


Index  to  Equity  Rules  755 

[references  are  to  pages.] 
EVIDENCE 

in  equity  trials,  how  taken,  objections  to 612 

EXCEPTIONS 

to  master 's  report,  costs  in  case  of G18,  619 

EXPERT   WITNESSES 

testimony  of  in  patent  and  trade-mark  cases 613 

FINAL  DECREES 

manner   of   enforcement    of 603 

GUARDIAN  OR  NEXT  FRIEND 

to  sue  for  infants,  etc 619 

HEIR 

when  a  party  to  suits  to  execute  trust  of  will 611 

INFANTS,  ETC. 

suit  by  guardian   or  next   friend 619 

INJUNCTION 

proceedings  in  case  of  appeal  from  final  decree  granting  or  dis- 
solving same  is  allowed 621 

preliminary,  and  temporary  restraining  order,  when  granted,  pro- 
ceedings  in    relation    to 620 

INTERLOCUTORY  ORDERS,   ETC. 

when  heard    602 

INTERROGATORIES 

when  allowed,  objections  thereto,  how  taken,  answers  to 615 

INTERVENTION 

allowed    610 

JOINDER 

of  causes  of  action,  when  allowed 607 

JOINT  AND  SEVERAL  DEMANDS 

who  may  be  sued  in  case  of 611 

LAW 

action  at  improperly  brought  on  equity  side  of  court,  how  treated.   606 
matter,  when  settled  in  suit  in  equity 606 

MARSHAL,  ETC. 

to    serve   process 604 


756  Index  to  Equity  Rules  '  . 

[refeeences  are  to  pages.] 
MASTER 

aflSdavits,  etc.,  may  be  used  in  proceedings  before 618 

duties   and   powers   of 618 

form  of  accounts  before 618 

power  of  to  examine  persons  presenting  claims,  procedure  in  such 

cases    618 

proceedings   before    617 

reference    to,    when    allowed,    when    to   be    presented    to   master   for 

hearing    617 

MASTER'S  REPOET 

its    content    617 

return  of,  exceptions  to 618 

MASTERS 

appointment  and  compensation  of 619 

MOTION  DAY 

when   held    602 

MOTIONS  GRANTABLE 

of  course  by  clerk 602 

NOMINAL  PARTIES 

appearance  and  answers  of 611 

OATH 

affirmation  in  lieu  of 623 

"ORDER  BOOK" 

kept  by  clerk  of  district  court 601 

ORDERS 

notice  of  sent  by  clerk  of  district  court 602 

of  district  judge  at  chambers,  etc 601 

PARTIES 

to    suits    610 

PATENT  AND  TRADE-MARK  CASES 

test  imony  of  expert  witnesses  in 613 

PLEADING 

t«'(;hiiical  forms  of  abolished 605 

PLEADINGS 

niad«^   more   certain 605 

vt-rificd    before   whom 609 


Index  to  Equity  Rules  757 

[references  are  to  pages.] 
PROCESS 

by  whom   served gQ^ 

in  behalf  of  and  against  persons  not  parties 604 

PRO  CONFESSO 

when  such  judgment  granted,  and  effect  thereof 604,  605 

PROPER  PARTIES 

when  court  may  proceed  without  their  being  parties  to  suit 610 

RECORD 

on    appeal    621 

REFERENCE  TO  MASTER 

when  allowed,  when  to  be  presented  to  master  for  hearing 617 

REHEARING 

when  granted,  contents  of  petition  fv?r 619 

REPLY 

when  required,  effect  of  failure  to 608 

REPRESENTATIVE 

of  class  may  sue  and  defend 610 

RETURN  OF  MASTER 'S  REPORT 

exceptions    to   report 618 

REVIVOR 

contents  of  bill  of 609 

in  case  of  death  of  either  party 612 

RULES 

when  district  court  may  make  additional 623 

when  effective    623 

SCANDAL 

impertinent,  scandalous  matter  stricken  out 605 

SEPARATE  TRIALS 

when  allowed    607 

SEQUESTRATION 

use  of  writ  of 602,  603 

SERVICE  OF  PROCESS 

by  whom    604 

SERVING  SUBPOENA 

manner  of    604 


758  Index  to  Equity  Rules 

[refeeences  are  to  pages.] 
SIGNATUEE  OF  COUNSEL 

to  pleadings    606 

STEXOGEAPHER 

when  appointed,  duties,  fees 613 

STOCKHOLDER'S  BILL 

when  allowed,  contents  of 607 

SUBPOENA 

manner   of   serving 604 

used  to  require  defendant  to  appear  and  answer 602,  604 

SUPPLEMENTAL  BILL 

contents  of    609 

TIME 

how  computed    623 

VERIFICATION  OF  PLEADINGS 

before  whom    609 

WILL 

suit  to  execute  trusts  of,  when  heir  a  party 611 

WRITINGS 

admission  of  execution   of 615 


I 


OF  LAW  LIBIIAUY 
lY  01'^  CALIIOHNIA 
,:,S  ANCELUS 


AA    000  884  570    3 


